SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D-A
Under the Securities Exchange Act of 1934
(Amendment No. 8)*
E-Z Serve Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
269-329-108
------------------------
(CUSIP Number)
Tami E. Nason, Esq. COPY TO: Christopher A. Klem, Esq.
Harvard Private Capital, Inc. Ropes & Gray
600 Atlantic Avenue One International Place
Boston, MA 02210 Boston, MA 02110
(617) 523-4400 (617) 951-7410
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
January 27, 1997 - January 31, 1997
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 170 Pages
<PAGE>
SCHEDULE 13D
- ------------------------ -----------------------------
CUSIP No. 269-329-108 | | Page 2 of 170 Pages |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 17,164,006 Shares of Common Stock (see Item 5) |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | --- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 17,164,006 Shares of Common Stock (see Item 5) |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | --- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 17,164,006 Shares of Common Stock (see Item 5) |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 24.8% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 170 Pages
<PAGE>
SCHEDULE 13D
- ------------------------ -----------------------------
CUSIP No. 269-329-108 | | Page 3 of 170 Pages |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 Shares of Common Stock (see Item 5) |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | --- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 Shares of Common Stock (see Item 5) |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | --- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 Shares of Common Stock (see Item 5) |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.1% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 3 of 170 Pages
<PAGE>
SCHEDULE 13D
- ------------------------ -----------------------------
CUSIP No. 269-329-108 | | Page 4 of 170 Pages |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 Shares of Common Stock (see Item 5) |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | --- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 Shares of Common Stock (see Item 5) |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | --- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 Shares of Common Stock (see Item 5) |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.2% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 4 of 170 Pages
<PAGE>
SCHEDULE 13D
E-Z Serve Corporation
Amendment No. 8
This Amendment No. 8 hereby amends the initial Schedule 13D filed on
September 19, 1991, and all amendments thereto.
Item 2. Identity and Background.
Item 2 is amended by adding thereto the following:
Aeneas Venture Corporation does not own any shares of the common stock,
$0.01 par value (the "Common Stock") of E-Z Serve Corporation, a Delaware
corporation (the "Issuer"), and the same withdraws its filing as a reporting
person of this Schedule 13D.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is amended by adding thereto the following:
The source of funds used to purchase the securities of the Issuer to which
this Statement relates held by each of Phemus Corporation, a Massachusetts
corporation ("Phemus"), President and Fellows of Harvard College, a
Massachusetts educational corporation ("Harvard"), and Harvard Yenching
Institute, a Massachusetts corporation ("HYI"), have been general funds (and
income received therefrom), of Phemus, Harvard and HYI, respectively.
The Issuer and Phemus entered into a Securities Purchase Agreement, dated
as of January 27, 1997 (a copy of which is attached hereto as Exhibit O) (the
"Securities Purchase Agreement") and the Issuer, Phemus, and The John R.
Schoemer Trust for the benefit of John R. Schoemer (the "Schoemer Trust")
entered into a Stock Redemption Agreement, dated as of January 27, 1997 (a copy
of which is attached hereto as Exhibit P) (the "Stock Redemption Agreement").
Subject to certain conditions set forth in the Securities Purchase
Agreement, Phemus agreed to purchase 140,000 shares of the Issuer's Series H
Preferred Stock, $0.01 par value (the "Preferred H Stock") and warrants for the
purchase of an aggregate of 960,000 shares of the Issuer's Common Stock at a per
share exercise price of $0.01, for an aggregate purchase price of $13,440,000.
In connection with the execution of the Securities Purchase Agreement, the
Issuer, Phemus, Intercontinental Mining & Resources Incorporated, a British
Virgin Islands corporation ("IMR"), Quadrant Capital Corp., a Delaware
corporation, formerly named Intercontinental Mining & Resources Limited
("Quadrant Capital Corp."), DLJ Capital Corporation, a Delaware corporation
("DLJ Capital Corp."), and Tenacqco Bridge Partnership, a New York partnership
("Tenacqco Bridge Partnership") (Phemus, IMR, Quadrant Capital Corp., DLJ
Capital Corp., and Tenacqco Bridge Partnership are referred to herein together
as the "Holders") entered into Amendment No. 1 to Stockholders Agreement, dated
as of January 27, 1997 (a copy of which is
Page 5 of 170 Pages
<PAGE>
attached hereto as Exhibit Q) (the "Amended Stockholders Agreement"), whereby
the Holders, among other things, agreed to certain provisions to ensure the
ability of Phemus to exercise in full any warrants issued in connection with the
Securities Purchase Agreement. In connection with the execution of the
Securities Purchase Agreement, the Issuer, Phemus, IMR, and Quadrant Capital
Corp. entered into the Third Amendment to the Registration Rights Agreement,
dated as of January 27, 1997, whereby the Common Stock issued upon the exercise
of warrants issued or issuable under the Securities Purchase Agreement would be
subject to the registration rights of such Registration Rights Agreement.
Subject to certain conditions set forth in the Stock Redemption Agreement,
the Issuer used a portion of the proceeds of the sale of the securities pursuant
to the Securities Purchase Agreement to redeem 74,702 shares of $6.00
Convertible Preferred Stock, Series C (the "Preferred C Stock"), held by Phemus
for an aggregate purchase price of $8,253,650, and 954 shares of Preferred C
Stock held by the Schoemer Trust for an aggregate purchase price of $105,405.
Phemus and IMR entered into a Securities Sale Agreement, dated as of
January 31, 1997 (a copy of which is attached hereto as Exhibit R) (the
"Securities Sale Agreement"). Subject to certain conditions set forth in the
Securities Sale Agreement, Phemus agreed to sell to IMR 33,600 shares of
Preferred H Stock and warrants to purchase 230,400 shares of Common Stock for an
aggregate purchase price of $2,144,724.
The foregoing summaries of certain agreements and instruments relating to
the transactions described herein are qualified in their entirety by reference
to the complete texts thereof, set forth in applicable exhibits hereto.
Item 4. Purpose of the Transaction.
Item 4 is amended in its entirety to read as follows:
Each of Phemus, Harvard and HYI has purchased the shares of Common Stock it
beneficially owns as of the date of this statement for investment purposes. Each
of Phemus, Harvard and HYI disclaims any intention to influence control of
management.
As part of its overall portfolio management as an institutional investor,
each of Phemus, Harvard and HYI may from time to time otherwise acquire
additional shares of the Issuer and may dispose of shares in the open market, in
private transactions, pursuant to underwritings under registration rights
granted by the Issuer and otherwise, depending upon various factors including
the price level of the Common Stock, conditions in the securities markets,
general economic and industry conditions, and the availability of other
investment opportunities.
Other than as described above in this Item 4, neither Phemus, Harvard nor
HYI has any plans or proposals which relate to or would result in any of the
actions set forth in parts (b) through (j) of Item 4.
Page 6 of 170 Pages
<PAGE>
Item 5. Interest in Securities of the Issuer.
Item 5, paragraphs (a), (b) and (c) are amended in their entirety to read
as follows:
(a), (b).
--------------
Aeneas is the beneficial owner of no shares of Common Stock of the Issuer.
HYI is the beneficial owner of 62,000 shares of Common Stock (approximately
0.1% of the shares of Common Stock based upon the most recently available filing
by the Issuer with the Securities and Exchange Commission (the "SEC") and
including shares of Common Stock which HYI has the right to acquire beneficial
ownership of within 60 days).
Harvard is the beneficial owner of 124,000 shares of Common Stock
(approximately 0.2% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the SEC and including shares of Common Stock
which Harvard has the right to acquire beneficial ownership of within 60 days).
Phemus is the beneficial owner of 16,434,406 shares of Common Stock and,
solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to be the
beneficial owner of an additional 729,600 shares of Common Stock for a total
beneficial ownership of 17,164,006 shares of Common Stock (approximately 24.8%
of the shares of Common Stock based on the most recent filing of the Issuer with
the SEC and including shares of Common Stock of the Issuer which Phemus has the
right to acquire beneficial ownership of within 60 days). The foregoing amounts
and percentages do not include the 124,000 shares of Common Stock of the Issuer
beneficially owned by Harvard and 62,000 shares of Common Stock of the Issuer
beneficially owned by HYI, nor do they give effect to the exercise of any
options, warrants and conversion rights held by other holders of the Issuer's
securities.
Tenacqco Bridge Partnership and DLJ Capital Corp. which, for purposes of
this Item 5 will be referred to jointly as "Tenacqco Bridge Partnership," unless
otherwise indicated, in the aggregate own or have the right to acquire and,
solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to beneficially own
29,715,364 shares of Common Stock, representing approximately 43.0% of the
outstanding shares of Common Stock. The foregoing amounts and percentages do not
give effect to the exercise of any options, warrants and conversion rights held
by other holders of the Issuer's securities.
IMR and Quadrant Capital Corp. which, for purposes of this Item 5 will be
referred to jointly as "IMR," unless otherwise indicated, in the aggregate own
or have the right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i),
may be deemed to own beneficially 14,961,480 shares of Common Stock,
representing approximately 21.6% of the outstanding Common Stock. The foregoing
amounts and percentages do not give effect to the exercise of any options,
warrants and conversion rights held by other holders of the Issuer's securities.
Page 7 of 170 Pages
<PAGE>
Pursuant to Rule 13d-5(b)(1), to the extent a "group" is deemed to exist by
virtue of the Amended Stockholders Agreement, such group would be deemed to have
beneficial ownership of all equity securities of the Issuer beneficially owned
by the other parties to the Amended Stockholders Agreement. The aggregate number
of shares of Common Stock beneficially owned by Phemus, Tenacqco Bridge
Partnership and IMR as a "group" is 61,840,850, representing approximately 88.2%
of the outstanding Common Stock.
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock to which this statement relates held in its name, and
each has sole power to vote and dispose of all of such shares.
To the best of Phemus's, HYI's and Harvard's knowledge and belief, none of
the executive officers or directors of Phemus or HYI, nor the President, Fellows
or any other executive officers of Harvard beneficially owns any shares of the
Common Stock of the Issuer.
(c).
------------------
Other than the transactions described in the immediately preceding
paragraph, neither Phemus, Harvard nor HYI has engaged in any transactions in
the Common Stock of the Issuer during the past 60 days. To the best of Phemus's,
HYI's and Harvard's knowledge and belief, none of the directors or executive
officers of Phemus or HYI, nor the President, Fellows or any other executive
officers of Harvard has engaged in any transactions in the Common Stock of the
Issuer during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of Issuer.
Item 6 is amended by adding thereto the following:
Pursuant to the Amended Stockholders Agreement, the Holders have agreed,
among other things, to certain provisions to ensure the ability of Phemus to
exercise in full any warrants in connection with the Securities Purchase
Agreement.
Item 7. Materials to be Filed as Exhibits.
Item 7 is amended in its entirety to read as follows:
*Exhibit A: Information concerning Reporting Persons.
Exhibit B: Information concerning Reporting Persons' officers, directors
and others.
Page 8 of 170 Pages
<PAGE>
*Exhibit C: Registration Statement (Registration No. 33-37141) on Form S-1
under the Securities Act of 1933 dated March 22, 1991 (the "Registration
Statement") filed by the Issuer and Tejas Power Corporation with the
Securities and Exchange Commission (incorporated by reference to such
filing).
*Exhibit D: Standby Purchase Agreement dated September 18, 1990 and
subsequently amended, among, inter alia, the Issuer and Phemus
(incorporated by reference to Exhibit 10.2 to the Registration Statement).
*Exhibit E: Credit Agreement dated May 25, 1990 and subsequently amended,
among, inter alia, the Issuer and Phemus (incorporated by reference to
Exhibit 10.1 to the Registration Statement).
*Exhibit F: Stockholders Agreement dated July 31, 1992 among, inter alia,
the Issuer and Phemus.
*Exhibit G: Warrant Purchase Agreement dated July 15, 1992 among, inter
alia, the Issuer and Phemus, and form of Warrant.
*Exhibit H: Restructuring Agreement dated July 189, 1992 and subsequently
amended, among, inter alia, the Issuer and Phemus, and form of Warrant.
*Exhibit I: Option Agreement dated July 18, 1992 and subsequently amended,
among Phemus, DLJ Capital Corp. Bridge Finance, L.P. and IMR.
*Exhibit J: New Proxy dated July 31, 1992 executed by Phemus in favor of
Tenacqco Bridge Partnership replacing Proxy dated July 18, 1992 executed by
Phemus in favor of DLJ Capital Corp. Bridge Finance, L.P.
*Exhibit K: Amendment to Stockholders Agreement dated April 20, 1993 among
DLJ Capital Corp., Tenacqco Bridge Partnership, Phemus, IMR, Quadrant and
the Issuer.
*Exhibit L: Amended and Restated Stockholders Agreement dated as of June 1,
1994 among DLJ Capital Corp., Tenacqco Bridge Partnership, Phemus, IMR,
Quadrant Capital Corp., the Issuer and certain key employees of the Issuer.
*Exhibit M: Subscription Agreement dated June 13, 1995 by and among the
Issuer, Phemus and IMR.
*Exhibit N: Consent of Holders dated June 13, 1995 executed by Phemus,
Quadrant Capital Corp., IMR, Tenacqco Bridge Partnership and DLJ Capital
Corp.
- ----------
*Previously filed as exhibits to this Schedule 13D.
Page 9 of 170 Pages
<PAGE>
Exhibit O: Securities Purchase Agreement dated January 27, 1997 by and
between the Issuer and Phemus.
Exhibit P: Stock Redemption Agreement dated January 27, 1997 by and among
the Issuer, Phemus and the Schoemer Trust.
Exhibit Q: Amendment No. 1 to Stockholders Agreement dated January 27, 1997
by and among Phemus, IMR, Quadrant Capital Corp., DLJ Capital Corp., and
Tenacqco Bridge Partnership.
Exhibit R: Securities Sale Agreement dated as of January 31, 1997 by and
between Phemus and IMR.
Page 10 of 170 Pages
<PAGE>
Exhibit B is amended to read in its entirety as follows:
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210.
1. Trustees of HYI
<TABLE>
<CAPTION>
Present Principal
Name Occupation
------- -----------------
<S> <C>
Professor Henry Rosovsky, Chairman Professor, Harvard University
Linda Chisolm Associate of Episcopal Colleges
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the Clarence and
Anne Dillon Dunwalke Trust
Jeremy Knowles Dean of Arts and Sciences,
Harvard University
Dr. David W. Vikner President, United Board for Christian
Higher Education in Asia
Dr. Nathan M. Pusey Retired President, Harvard University
Mr. Galen L. Stone Private Investor
</TABLE>
2. Executive Officers of HYI (in addition to those listed under (I.))
<TABLE>
<CAPTION>
Office/Position
Name with HYI
-------- ---------------
<S> <C>
Tu Weiming Director
Page 11 of 170 Pages
<PAGE>
Edward J. Baker Assistant Director
</TABLE>
3. Directors of Phemus
<TABLE>
<CAPTION>
Present Principal
Name Occupation
-------- -----------------
<S> <C>
Jack R. Meyer President, Harvard Management Company, Inc.
Verne O. Sedlacek Chief Financial Officer, Harvard Management
Company, Inc.
Michael R. Eisenson President and Chief Executive Officer,
Harvard Private Capital Group, Inc.
</TABLE>
4. Executive Officers of Phemus
Office/Position
Name with Harvard
------- ---------------
Michael R. Eisenson President
Verne O. Sedlacek Treasurer
Tim R. Palmer Vice President
Michael Thonis Vice President
Tami E. Nason Clerk
Kevin J. Tunick Assistant Clerk
5. President and Fellows of Harvard and Other Executive Officers of Harvard
Office/Position
Name with Harvard
-------- ---------------
Neil Rudenstine President
Michael Roberts Secretary
D. Ronald Daniel Treasurer
Albert Carnesale Fellow
Page 12 of 170 Pages
<PAGE>
James R. Houghton Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Richard A. Smith Fellow
Henry Rosovsky Fellow
Anne Taylor Acting Vice President and General
Counsel
Sally Zeckhauser Vice President for Administration
Thomas M. Reardon Vice President of Alumni Affairs
and Development
Elizabeth C. Huidekoper Vice President for Finance
James H. Rowe Vice President of Government,
Community and Public Affairs
Page 13 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
Dated: February 25, 1997
PHEMUS CORPORATION
By: /s/ Tami E. Nason
-----------------------------------
Name: Tami E. Nason
Title: Authorized Signatory
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Pursuant to Rule 101(a)(2)(ii) of Regulation S-T, attached hereto as
Schedules I-VIII to this Amendment No. 8 to Schedule 13-D are copies of the
initial 13-D and all amendments thereto.
Page 14 of 170 Pages
<PAGE>
EXHIBIT O
================================================================================
-----------------------------
SECURITIES PURCHASE AGREEMENT
-----------------------------
between
E-Z SERVE CORPORATION
and
PHEMUS CORPORATION
Dated
As of January 27, 1997
================================================================================
Page 15 of 170 Pages
<PAGE>
TABLE OF CONTENTS
Page
1. TRANSACTIONS AND DEFINITIONS........................................1
2. THE SECURITIES......................................................1
2.1. Series H Preferred Stock....................................1
2.2. Warrants....................................................1
2.4. Investor Securities Defined.................................2
3. SALE AND PURCHASE OF SECURITIES.....................................2
3.1. Agreement to Sell and Purchase..............................2
3.2. Closing.....................................................2
3.3. Use of Proceeds.............................................2
3.4. Specifically Prohibited Applications of Proceeds............3
4. REPRESENTATIONS AND WARRANTIES......................................3
4.1. Organization, Standing, Subsidiaries, etc...................3
4.2. Capitalization..............................................3
4.3. Reservation of Common Stock.................................4
4.4. No Legal Obstacle to Agreement..............................4
4.5. Foreign Trade Regulations; Government Regulations...........4
4.6. Availability for Resale.....................................5
4.7. Disclosure..................................................5
5. INVESTMENT REPRESENTATIONS..........................................5
5.1. Accredited Investor.........................................5
5.2. Experience..................................................5
5.3. Investment..................................................5
5.4. Authorization, etc..........................................6
6. CONDITIONS TO PURCHASE..............................................6
6.1. Credit Agreement............................................6
6.2. Legal Opinions..............................................6
6.3. Representations and Warranties; Officers' Certificate.......6
6.4. Commitment Fees.............................................6
6.5. Payment of Transaction Costs................................6
6.6. Proper Proceedings..........................................6
6.7. Legality; Governmental Authorization........................7
6.8. Due Diligence...............................................7
6.9. Amendment to Registration Rights Agreement..................7
6.10. Amendment to Stockholders Agreement................7
6.11. General............................................7
7. COVENANTS APPLICABLE WHILE ANY INVESTOR SECURITIES ARE OUTSTANDING..7
Page 16 of 170 Pages
<PAGE>
7.2. Resale under Rule 144.......................................8
7.3. Use of Proceeds.............................................8
8. COVENANTS APPLICABLE WHILE ANY SHARES OF SERIES H PREFERRED STOCK
CONSTITUTING INVESTOR SECURITIES ARE OUTSTANDING....................8
8.1. Issuance of Additional Warrants.............................8
8.2. Distributions...............................................9
8.3. Resale Under Rule 144A......................................9
9. COVENANTS APPLICABLE WHILE ANY WARRANTS OR ADDITIONAL WARRANTS
CONSTITUTING INVESTOR SECURITIES ARE OUTSTANDING....................9
9.1. Reservation of Common Stock.................................9
10. PAYMENT ON INVESTOR SECURITIES; TRANSFER; REPLACEMENT...............9
10.1. Payment.....................................................9
10.2. Transfer and Exchange of Senior Preferred..................9
10.3. Transfer, Exchange, Exercise and Conversion of Warrants....10
10.4. Replacement of Lost Securities.............................10
11. RESTRICTIONS ON TRANSFER...........................................10
11.1. Restrictive Legend.........................................10
11.2. Notice of Proposed Transfer; Opinions of Counsel...........11
11.3. Termination of Restrictions................................11
12. DEFINITIONS........................................................11
12.1. Terms Defined Elsewhere....................................11
12.2. Action.....................................................12
12.3. Affiliate..................................................12
12.4. Business Day...............................................13
12.5. By-laws....................................................13
12.6. Charter....................................................13
12.7. Commission.................................................13
12.8. Consolidated...............................................13
12.9. Contractual Obligation.....................................13
12.10. Credit Agreement...........................................13
12.11. Distribution...............................................13
12.12. Exchange Act...............................................14
12.13. Equity Securities..........................................14
12.14. Foreign Trade Regulations..................................14
12.15. Governmental Authority.....................................14
12.16. Indebtedness...............................................14
12.17. Investment.................................................14
12.18. Legal Requirement..........................................15
12.19. Lien.......................................................15
12.20. Major Holder...............................................15
12.21. Material Adverse Change; Material Adverse Effect...........15
12.22. Members of the Immediate Family............................15
Page 17 of 170 Pages
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12.23. Person.....................................................15
12.24. Public Sale................................................15
12.25. Related Agreements.........................................15
12.26. Required Holders...........................................16
12.27. Rule 144...................................................16
12.29. Securities Act.............................................16
12.30. Stockholder................................................16
12.31. Subject Entity.............................................16
12.32. Subsidiary.................................................16
13. EXPENSES, INDEMNITY................................................16
13.1. Expenses...................................................16
13.2. Indemnity..................................................17
14. NOTICES............................................................17
15. SURVIVAL...........................................................18
16. AMENDMENTS AND WAIVERS.............................................18
17. WAIVER OF JURY TRIAL...............................................18
18. SERVICE OF PROCESS.................................................19
19. APPLICABLE REMEDIES................................................19
20. MISCELLANEOUS......................................................19
Page 18 of 170 Pages
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SCHEDULES AND EXHIBITS
Schedule I Home Office Payments
Exhibit 2.1 Charter of Company
Exhibit 2.2 Warrant
Exhibit 6.9 Amendment No. 3 to Registration Rights Agreement
Exhibit 6.10 Amendment No. 1 to Amended and Restated Stockholders Agreement
Page 19 of 170 Pages
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E-Z SERVE CORPORATION
2550 North Loop West
Houston, Texas 77092
Telephone Number: (713) 684-4300
As of January 27, 1997
PHEMUS CORPORATION
c/o Harvard Management Company
600 Atlantic Avenue
Boston, Massachusetts 02210
Ladies and Gentlemen:
In connection with the purchase and sale of securities provided for herein,
the undersigned E-Z Serve Corporation, a corporation duly incorporated and
validly existing under the laws of the State of Delaware (the "Company"), hereby
agrees with you as follows:
1. TRANSACTIONS AND DEFINITIONS. Subject to all of the terms and conditions of
this Agreement and in reliance on the representations and warranties set forth
or incorporated by reference herein, the Company proposes to issue and sell to
you the Investor Securities described herein, and to apply the proceeds
therefrom solely as specified in Section 3.3 hereof. Certain terms are used in
this Agreement as specifically defined herein. These definitions are set forth
or referred to in Section 12 hereof.
2. THE SECURITIES.
2.1. Series H Preferred Stock. The Company has authorized the issuance and
sale to you of 140,000 shares of its Series H Preferred Stock, $0.01 par value
(the "Series H Preferred Stock") with the terms specified in the Company's
Charter (the "Certificate") attached hereto as Exhibit 2.1. You consent to the
issuance of Series H Preferred Stock in your capacity as a holder of the $6.00
Convertible Preferred Stock, Series C (the "Series C Preferred Stock") of the
Company.
2.2. Warrants. The Company has authorized the issuance and sale to you of
warrants, each in substantially the form of Exhibit 2.2 hereto, for the purchase
of an aggregate of 960,000 shares of the Company's common stock, par value $0.01
per share ("Common Stock"), at a per share exercise price of $0.01 (each such
warrant, together with any warrant or warrants issued in exchange therefor,
being referred to herein as a "Warrant" and collectively as the "Warrants"). In
addition, the Company shall issue you additional warrants (the "Additional
Warrants") pursuant to and in accordance with Section 8.1 hereof.
2.3. Aggregate Purchase Price. The aggregate purchase price for the Series
H Preferred Stock and the Warrants shall be 13,440,000.
Page 20 of 170 Pages
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2.4. Investor Securities Defined. The Series H Preferred Stock and the
Warrants being issued to you hereunder, together with (i) any securities issued
with respect thereto (whether as a stock dividend or otherwise), upon exercise,
conversion or transfer thereof or in exchange therefor, including without
limitation the Additional Warrants and the Common Stock issued or issuable upon
exercise or conversion of the Warrants and the Additional Warrants (the "Warrant
Shares") and (ii) any securities issued with respect to, upon exercise,
conversion or transfer of or in exchange for the securities described in the
immediately preceding clause (i) or this clause (ii), are collectively referred
to herein as "Investor Securities"; provided, however, that any such securities
sold in a Public Sale shall cease to be Investor Securities for all purposes
hereof.
3. SALE AND PURCHASE OF SECURITIES.
3.1. Agreement to Sell and Purchase. Based on your representations and
warranties contained in Section 4 hereof, the Company hereby agrees to issue and
sell to you, and, subject to all of the terms and conditions hereof and in
reliance on the representations and warranties of the Company set forth or
otherwise referred to herein, you hereby agree to purchase from the Company, at
the Closing, the Series H Preferred Stock and the Warrants, at the purchase
price specified in Section 2.3.
3.2. Closing. The closing of the purchase and sale of the Investor
Securities (the "Closing") shall take place at 10:00 a.m., Boston time, at the
offices of Ropes & Gray, on or before January 27, 1997 or at such other place as
the Company and you may agree upon (the date on which the Closing occurs being
herein referred to as the "Closing Date"). At the Closing, the Company will,
unless otherwise requested, deliver to you a single certificate for the Series H
Preferred Stock evidencing the aggregate number of shares of Series H Preferred
Stock being issued to you by the Company hereunder, and a single warrant
evidencing the aggregate number of Warrants being issued to you by the Company
hereunder, each registered in your name, against payment of the purchase price
therefor by wire transfer of immediately available funds to a single account of
the Company specified by notice from the Company to you not less than two
Business Days prior to the Closing Date.
3.3. Use of Proceeds. The Company covenants that it will apply the proceeds
of the Investor Securities to be issued and sold by it to you at the Closing (a)
to the payment of $3,550,000 principal due under a term loan from certain senior
lenders, (b) to the redemption of all of its outstanding shares of Series C
Preferred Stock for $100 per share, plus all accrued and unpaid dividends
thereon, and (c) any remaining proceeds shall be used for general corporate
purposes.
3.4. Specifically Prohibited Applications of Proceeds. In no event shall
the Company, directly or indirectly, apply any part of the proceeds from the
issuance and sale hereunder of the Investor Securities to any transaction
prohibited by the Foreign Trade Regulations.
4. REPRESENTATIONS AND WARRANTIES. In order to induce you to enter into this
Agreement and to purchase the Investor Securities to be purchased by you
hereunder, the Company hereby represents and warrants as follows with respect to
the Company and its Subsidiaries:
4.1. Organization, Standing, Subsidiaries, etc.
Page 21 of 170 Pages
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4.1.1. The Company. The Company is a duly incorporated and validly
existing corporation under the laws of the State of Delaware, with all
necessary power and authority, corporate and otherwise, to execute, deliver
and perform this Agreement and each other Related Agreement to which it is
or will be a party, to issue, sell and perform the Investor Securities, and
to carry on the business now conducted or currently proposed to be
conducted by it. The Company has taken all action, corporate and otherwise,
necessary to authorize this Agreement, the other Related Agreements to
which it is or will be a party and the issuance of the Investor Securities
and to make each such document the legal, valid, binding and enforceable
obligation it purports to be, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally or by general principles of
equity. This Agreement, each other Related Agreement to which the Company
is or will be a party and the Investor Securities have been (or, as
applicable, will have been at or prior to the Closing, to the extent
deliverable at Closing) duly executed and delivered by the Company.
4.1.2. Charter. Attached hereto as Exhibit 2.1 is a correct and
complete copy of the Charter of the Company (including the Certificate of
Designation for the Series H Preferred Stock (the "Certificate")) as in
effect at the execution hereof and as it will be in effect at the Closing.
4.1.3. Qualification. The Company is duly qualified to do business as
a foreign corporation and is in good standing as such in each jurisdiction
in which it is required to be so qualified and is duly authorized,
qualified and licensed under all laws, regulations, ordinances or orders of
public authorities, or otherwise, to carry on its business in the places
and in the manner presently conducted and proposed to be conducted, except
for such failures to be so qualified or authorized, qualified and licensed
that have not had and are not reasonably expected to have a Material
Adverse Effect.
4.2. Capitalization.
4.2.1. Capital Stock of the Company. The authorized capital stock of
the Company immediately after the Closing will consist of 100,000,000
shares of Common Stock, and 3,000,000 shares of preferred stock, with
200,000 shares designated as Series C Preferred Stock, and 750,000 shares
designated as Series H Preferred Stock. Immediately after the Closing and
the application of the proceeds therefrom, the Company will have
outstanding 69,119,532 shares of Common Stock and 140,000 shares of Series
H Preferred Stock, all of which have been validly issued and are fully paid
and non-assessable. Immediately after the Closing and the application of
the proceeds therefrom, no shares of Series C Preferred Stock will be
outstanding. When issued and paid for as provided for in this Agreement,
the Investor Securities will be subject to no Lien, except restrictions on
transfer imposed by this Agreement and applicable securities laws and
Liens, if any, created by you.
4.3. Reservation of Common Stock. The shares of Common Stock issuable upon
exercise or conversion of the Warrants have been duly authorized and reserved
for issuance by all necessary corporate action on the part of the Company, and
such shares, when issued upon such exercise or conversion (as applicable), will
be duly and validly issued, fully paid and nonassessable.
Page 22 of 170 Pages
<PAGE>
4.4. No Legal Obstacle to Agreement. Neither the execution and delivery of
this Agreement or any other Related Agreement, nor the consummation of any
transaction referred to herein or therein or contemplated hereby or thereby, nor
the fulfillment of the terms hereof or thereof or of any agreement or instrument
referred to in this Agreement or any other Related Agreement, has constituted or
resulted in or will constitute or result in (i) a breach of the provisions of
any Contractual Obligation to which any the Company is party or by which it is
bound or of its Charter or By-laws, or (ii) assuming the accuracy of your
representations and warranties in Section 5 hereof, a violation of any Legal
Requirement applicable to any Subject Entity, or (iii) the creation under any
Contractual Obligation of any Lien (other than liens required by the Credit
Agreement) upon any of the assets of the Company. No approval, authorization or
other action by any Governmental Authority or any other Person is required to be
obtained by the Company in connection with the execution, delivery and
performance of this Agreement or any other Related Agreement or the Investor
Securities or the transactions contemplated hereby or thereby, except for such
approvals as will have been obtained and shall be in full force and effect as of
the Closing Date, and copies of which shall have been furnished to you at or
prior to the Closing.
4.5. Foreign Trade Regulations; Government Regulations.
4.5.1. Foreign Trade Regulations. Neither the execution and delivery
of this Agreement or any other Related Agreement, nor the issuance and sale
of the Investor Securities by the Company hereunder and the application of
the proceeds thereof, has constituted or resulted in or will constitute or
result in the violation of any Foreign Trade Regulation.
4.5.2. Governmental Regulation. Neither the Company nor any
corporation controlling the Company or under common control with the
Company is subject to regulation under the Public Utility Holding Company
Act of 1935, the Investment Company Act of 1940, the Interstate Commerce
Act or the Federal Power Act, or is subject to any Legal Requirement (other
than Legal Requirements applicable to borrowers or issuers of securities
generally) which regulates the incurring of Indebtedness by the Company, or
any of its Subsidiaries, for money borrowed or the issuing by any of them
of any equity security. No approval or authorization of any governmental
authority is required to permit the execution, delivery or performance by
the Company of this Agreement or the consummation of any of the
transactions contemplated hereby.
4.6. Availability for Resale. The Series H Preferred Stock is eligible for
resale pursuant to the provisions of Rule 144A.
4.7. Disclosure. Neither this Agreement nor any agreement, certificate,
statement or document furnished by or on behalf of the Company in connection
herewith, contains any untrue statement of material fact or omits to state a
material fact necessary in order to make the statements contained herein in
light of the circumstances in which made not misleading. There is no fact known
to the Company which has had, or in the future is reasonably likely to have (so
far as the Company can now foresee), a Material Adverse Effect.
5. INVESTMENT REPRESENTATIONS. You hereby represent and warrant to the Company
with respect to the purchase by you of the Investor Securities as follows;
provided, however, that nothing contained in this Section 5 shall prevent you
from transferring such Investor Securities in compliance
Page 23 of 170 Pages
<PAGE>
with the provisions of Section 11 hereof; and provided, further, that the
disposition of your property shall at all times be and remain in your control.
5.1. Accredited Investor. You are an "accredited investor" as such term is
defined in Rule 501(a) of Regulation D of the Securities Act.
5.2. Experience. You have substantial experience in evaluating and
investing in private placement transactions of securities in companies similar
to the Company so you are capable of evaluating the merits and risks of your
investment in the Company and have the capacity to protect your own interests in
making your investment in the Company. You have had access to and an opportunity
to inspect all relevant information relating to the Company, including financial
statements of the Company, sufficient to enable you to evaluate the merits and
risks of the purchase of the Investor Securities hereunder. You also have had
the opportunity to ask questions of officers of the Company and have received
satisfactory answers respecting, and have obtained such additional information
as you have desired regarding, the business, financial condition and affairs of
the Company.
5.3. Investment. You are acquiring the Investor Securities for investment
and not with the view to, or for resale in connection with, any distribution
thereof. You understand that the Investor Securities to be purchased have not
been, and will not be registered under the Securities Act by reason of a
specific exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
your investment intent and the accuracy of your representations as expressed
herein.
5.4. Authorization, etc. You are a duly incorporated and validly existing
corporation under the laws of The Commonwealth of Massachusetts, with all
necessary power and authority, corporate and otherwise, to execute, deliver and
perform this Agreement and each other Related Agreement to which you are or will
be a party, and to carry on the business now conducted or currently proposed to
be conducted by you. You have the necessary power and authority to enter into
this Agreement and the Related Agreements, to perform your obligations hereunder
and thereunder, and to consummate the transactions contemplated hereby and
thereby. The execution and delivery by you of this Agreement and the Related
Agreements and the performance by you of your obligations hereunder and
thereunder have been duly authorized by all requisite corporate action, and this
Agreement and the Related Agreements constitute your legal, valid and binding
obligations, enforceable in accordance with its and their terms, subject to (a)
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors rights generally and (b) to general principles of equity.
This Agreement and each other Related Agreement to which you are or will be a
party have been (or, as applicable, will have been at or prior to the Closing)
duly executed and delivered by you.
6. CONDITIONS TO PURCHASE. Your obligation to purchase any of the Investor
Securities pursuant to this Agreement is subject to compliance by the Company
with its agreements herein contained, and to the satisfaction, simultaneously
with or prior to the Closing, of the following conditions, which may be waived
by you in the exercise of your sole discretion:
6.1. Credit Agreement. Certain of the lenders under the Credit Agreement
shall have entered into a letter agreement with you.
Page 24 of 170 Pages
<PAGE>
6.2. Legal Opinions. You shall have received from Bracewell & Patterson,
L.L.P., counsel to the Company, its opinions in form and substance reasonably
satisfactory to you.
6.3. Representations and Warranties. The representations and warranties
contained in Section 4 hereof shall be true and correct on and as of the Closing
with the same force and effect as though made on and as of the Closing; between
September 30, 1996 and the Closing there shall have been no Material Adverse
Effect as the result of any fire, flood, explosion, accident, drought, strike,
lockout, riot, sabotage, confiscation, condemnation or purchase of any property
by governmental authority, activities of armed forces or acts of God or the
public enemy, legislative or regulatory order or change, judicial decision or
any other event or development whether or not related to those enumerated above.
6.4. General. All instruments and legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in form and substance to you, and you shall have
received copies of all documents, including without limitation records of
corporate proceedings and opinions of counsel, which you may have reasonably
requested in connection therewith, such documents where appropriate to be
certified by proper corporate or governmental authorities.
6.5. Payment of Transaction Costs. At the time of the Closing, the Company
shall have paid all reasonable fees, expenses, and disbursements incurred by you
at or prior to the time of the Closing in connection with the transactions
contemplated by this Agreement and of the Related Agreements, including, without
limitation, the reasonable fees, expenses, and disbursements of your counsel.
6.6. Proper Proceedings. All proper corporate proceedings shall have been
taken by the Company to authorize this Agreement and the transactions
contemplated hereby.
6.7. Legality; Governmental Authorization. Neither the purchase of the
Investor Securities nor the consummation of any of the transactions contemplated
hereunder shall be prohibited by any Legal Requirement, or shall subject you to
any penalty, special tax, or other onerous condition. All necessary consents,
approvals, licenses, permits, orders and authorizations of, and registrations,
declarations and filings with, any governmental or administrative agency or any
other Person with respect to any of the transactions contemplated by this
Agreement or the other Related Agreements shall have been duly obtained or made
and shall be in full force and effect.
6.8. Due Diligence. You shall have completed your due diligence with
respect to the Company to your complete satisfaction.
6.9. Amendment to Registration Rights Agreement. Amendment No. 3 (the
"Registration Rights Amendment") to the Registration Rights Agreement dated
March 25, 1992 shall have been duly authorized, executed and delivered and shall
be in full force and effect in substantially the form of Exhibit 6.9 hereto with
no term or condition thereof having been amended, modified or waived without
your prior written consent.
6.10. Amendment to Stockholders Agreement. Amendment No. 1 (the
"Stockholders Agreement Amendment") to the Amended and Restated Stockholders
Agreement dated June 1, 1994 shall have been duly authorized, executed and
delivered and shall be in full force and effect in
Page 25 of 170 Pages
<PAGE>
substantially the form of Exhibit 6.10 hereto with no term or condition thereof
having been amended, modified or waived without your prior written consent.
The Company's obligation to sell the Investor Securities pursuant to this
Agreement is subject to compliance by you with your agreements herein contained,
and to the continued accuracy in all material respects on the Closing Date as
though made on and as of the Closing Date, your representations contained in
this Agreement.
7. COVENANTS APPLICABLE WHILE ANY INVESTOR SECURITIES ARE OUTSTANDING. The
Company covenants that so long as any of the Investor Securities remains
outstanding it will comply with the following provisions:
7.1. Notice of Defaults. Promptly upon any senior officer of the Company
obtaining knowledge of any covenant hereunder having been breached or of any
Event of Noncompliance under the Certificate, the Company will furnish to each
Major Holder a notice specifying the nature and period of existence thereof and
what action the Company has taken, is taking or proposes to take with respect
thereto.
7.2. Resale under Rule 144. For so long as the Common Stock is registered
under the Securities Act, the Company, for as long as necessary for you to
comply with Rule 144 under the Securities Act in order to sell Common Stock to
the public without registration thereunder, will make available to you the
benefit of certain rules and regulations of the Commission which may permit you
to sell Common Stock to the public without registration under the Securities Act
by (1) making and keeping "current public information" "available" (as both such
terms are defined in Rule 144 at all times, (2) timely filing with the
Commission, in accordance with all rules and regulations applicable thereto, all
reports and other documents (x) required of the Company for Rule 144, as it may
be amended from time to time (or any rule, regulation or statute replacing Rule
144), to be available and (y) required to be filed under Section 15(d) of the
Exchange Act, notwithstanding that the Company's duty to file such reports or
documents may be suspended or otherwise terminated under the express terms of
such provision, and (3) upon request by you, furnishing you a written statement
by the Company that it has complied with the reporting requirements of the
Exchange Act and Rule 144, together with a copy of the most recent annual or
quarterly report of the Company and such reports and documents filed by the
Company with the Commission as may reasonably be requested by you in order that
you may avail yourself of any rule or regulation of the Commission allowing
sales of Common Stock without registration under the Securities Act.
7.3. Use of Proceeds. Contemporaneously with or immediately after the
Closing, the Company shall use the proceeds of the sale of Investor Securities
for the purposes described in Section 3.3(a) and (b), and shall file a
Certificate of Elimination with respect to the Series C Preferred Stock.
8. COVENANTS APPLICABLE WHILE ANY SHARES OF SERIES H PREFERRED STOCK
CONSTITUTING INVESTOR SECURITIES ARE OUTSTANDING.
8.1. Issuance of Additional Warrants. On each anniversary of the Closing
Date on which shares of Series H Preferred Stock are outstanding, the Company
shall issue within ten Business Days of such anniversary date without
consideration to each holder of each share of Series H Preferred Stock
outstanding on such anniversary date (including without limitation shares of
Series H Preferred Stock
Page 26 of 170 Pages
<PAGE>
issued as dividends in kind) an Additional Warrant substantially in the form of
Exhibit 2.2 hereto to purchase the number of shares of Common Stock indicated in
the table below:
Anniversary Shares of Common Stock
----------- ----------------------
1st 16
2nd 24
3rd and thereafter 32
The shares of Common Stock in the table above shall be adjusted in accordance
with the rules contained in Section 2 of Exhibit 2.2 attached hereto.
The Company shall mail (by registered mail) the Additional Warrants to each
registered holder of Series H Preferred Stock at its address as listed in the
register maintained by the Company with respect to the Series H Preferred Stock.
8.2. Distributions. Neither the Company nor any of its Subsidiaries shall
make any Distribution with respect to the Common Stock.
8.3. Resale Under Rule 144A. The Company, at all times during which it is
neither subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, nor exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, will provide in written form, upon the written request of any
holder of Investor Securities, or a prospective purchaser of securities of the
Company from such holder, all information required by Rule 144A(d)(4)(i) of the
General Regulations promulgated by the Commission under the Securities Act
("144A Information"). With respect to the holder of Investor Securities, the
obligations of the Company under this Section 8.3 shall at all times be
contingent upon such holder's obtaining from a prospective purchaser an
agreement to take all reasonable precautions to safeguard the 144A Information
from disclosure to anyone other than employees, advisors or agents of the
prospective purchaser who required access to the 144A Information for the sole
purpose of evaluating its purchase of the Securities.
8.4. Financial Reporting. The Company shall provide each Major Holder of
Series H Preferred Stock with the same financial information as it provides to
its lenders under Section 7.1.1 of the Credit Agreement.
9. COVENANTS APPLICABLE WHILE ANY WARRANTS OR ADDITIONAL WARRANTS CONSTITUTING
INVESTOR SECURITIES ARE OUTSTANDING.
9.1. Reservation of Common Stock. Upon each issuance of Additional
Warrants, the Company will use its best efforts to cause its Charter to be
amended if necessary to ensure that there is sufficient authorized Common Stock
to permit the exercise or conversion (as applicable) of such Additional
Warrants. The Company will not issue additional shares of Common Stock or
options exercisable or convertible into Common Stock (other than Additional
Warrants) if there is insufficient authorized Common Stock to permit the
exercise or conversion ( as applicable) of such Additional Warrants.
10. PAYMENT ON INVESTOR SECURITIES; TRANSFER; REPLACEMENT.
Page 27 of 170 Pages
<PAGE>
10.1. Payment. All payments made in respect of the Investor Securities held
by you shall be made in federal or other immediately available funds in lawful
money of the United States for credit, not later than 2:00 p.m., Eastern
Standard Time, to you at your account set forth on Schedule I hereto accompanied
by sufficient information to identify the source and application thereof or by
such other method or at such other address as a holder of Investor Securities
shall have from time to time given timely notice of to the Company.
10.2. Transfer and Exchange of Series H Preferred Stock. The Company shall
keep at its principal office a register in which shall be entered the names and
addresses of the registered holders of shares of Series H Preferred Stock issued
by it and particulars of the respective shares of Series H Preferred Stock held
by them and of all transfers of such shares. Upon surrender at such office of
any certificate representing shares of Series H Preferred Stock for registration
of exchange or (subject to compliance with the applicable provisions of Section
11), transfer, the Company shall issue, at its expense, one or more new
certificates, in such denomination or denominations as may be requested, for
shares of such Series H Preferred Stock and registered as such holder may
request. Any certificate representing shares of Series H Preferred Stock
surrendered for registration of transfer shall be duly endorsed, or accompanied
by a written instrument of transfer duly executed by the holder of such
certificate or his attorney duly authorized in writing.
10.3. Transfer, Exchange, Exercise and Conversion of Warrants. The Company
shall keep at its principal office a register in which shall be entered the
names and addresses of the holders of the Warrants and particulars of the
Warrants held by them and of all transfers, exchanges, conversions and
redemptions of Warrants. Upon surrender at such office or such other place as
shall be duly specified by the Company of any Warrant for redemption,
conversion, exercise, exchange or (subject to compliance with the applicable
provisions of this Agreement, including without limitation the conditions set
forth in Section 11 hereof) transfer, the Company shall issue at its expense one
or more new Warrants in such denomination or denominations as may be requested,
and registered as such holder may request. Any Warrant surrendered for
registration of transfer shall be duly endorsed, or accompanied by a written
instrument of transfer duly executed by the holder of such certificate or his
attorney duly authorized in writing. The Company will pay shipping and insurance
charges, from and to each holder's principal office, upon any transfer,
exchange, conversion or redemption provided for in this Section 10.3.
10.4. Replacement of Lost Securities. Upon receipt of evidence reasonably
satisfactory to the Company of the loss, theft, destruction or mutilation of a
security and, in the case of any such loss, theft or destruction, upon delivery
of an indemnity bond in such reasonable amount as the Company may determine (or,
in the case of a security held by you or another institutional holder or by the
nominee of you or such other institutional holder, of an unsecured indemnity
agreement from you or such other holder reasonably satisfactory to the Company)
or, in the case of any such mutilation, upon the surrender of the security for
cancellation to the Company at its principal office, the Company at its expense
will execute and deliver or will cause to be executed and delivered in lieu
thereof a new security of like tenor. Any security in lieu of which any such new
security has been so executed and delivered or caused to be executed and
delivered by the Company shall not be deemed to be an outstanding security for
any purpose.
Page 28 of 170 Pages
<PAGE>
11. RESTRICTIONS ON TRANSFER. The Investor Securities shall be transferable only
upon satisfaction of the applicable conditions specified in this Section 11
11.1. Restrictive Legend. Except as otherwise permitted by Section 11.3
hereof, each Warrant shall bear a legend in substantially the form of the legend
set forth at the beginning of Exhibit 2.2 hereto, and each certificate
representing Warrant Shares or shares of Series H Preferred Stock shall bear a
legend in substantially the following form:
"The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, or under the securities laws of any
state, and may not be sold, or otherwise transferred, in the absence of
such registration or an exemption therefrom under such Act and under any
such applicable state laws. Furthermore, such shares may be sold or
otherwise transferred only in compliance with the conditions specified in
the Securities Purchase Agreement dated as of January 27, 1997 among the
issuer hereof and the other parties thereto. Complete and correct copies of
such Agreement (including the Exhibits thereto) are available for
inspection at the principal office of the issuer hereof and will be
furnished without charge to the holder of such shares upon written
request."
11.2. Notice of Proposed Transfer; Opinions of Counsel. Prior to any
transfer of any Investor Securities other than pursuant to an effective
registration statement under the Securities Act, the holder thereof will give
not less than three Business Days' prior written notice to the Company of such
holder's intention to effect such transfer, describing in reasonable detail the
manner of the proposed transfer. No holder of Investor Securities shall transfer
any Investor Securities other than pursuant to an effective registration
statement under the Securities Act until (i) such holder delivers to the Company
an opinion of Ropes & Gray or other counsel reasonably acceptable to the Company
addressed to the Company to the effect that the proposed transfer may be
effected without registration of such Investor Securities under the Securities
Act or applicable state securities laws, and (ii) the transferee agrees in
writing to be bound by all of the terms of this Agreement and the Investor
Securities to be transferred, and thereupon such holder shall be entitled,
within 30 days thereafter, to transfer such Investor Securities in accordance
with the terms of this Agreement and the notice delivered by such holder to the
Company.
11.3. Termination of Restrictions. The restrictions imposed by this Section
11 upon the transferability of Investor Securities shall cease and terminate as
to any particular Investor Securities and any securities issued in exchange
therefor or upon transfer thereof (i) when, (in the case of Sections 11.1 and
11.2 hereof) in the written opinion (addressed to the Company) of Ropes & Gray
or other counsel reasonably acceptable to the Company, such restrictions are no
longer required in order to assure compliance with the Securities Act, or (ii)
when such Investor Securities are being or have been sold pursuant to a Public
Sale. Whenever any of such restrictions shall cease and terminate as to any
Investor Securities, the holder thereof shall be entitled to receive, without
expense, from the Company, new certificates not bearing that part of the legend
specified in Section 11.1 hereof that is no longer applicable.
12. DEFINITIONS. For purposes of this Agreement:
12.1. Terms Defined Elsewhere. The following terms defined elsewhere in
this Agreement in the Sections set forth below shall have the respective
meanings therein defined:
Page 29 of 170 Pages
<PAGE>
Term Definition
---- ----------
"Additional Warrants" Section 2.2
"Certificate" Section 4.1.2
"Closing" Section 3.2
"Closing Date" Section 3.2
"Common Stock" Section 2.2
"Company" Preamble
"Investor Securities" Section 2.4
"Registration Rights Amendment" Section 6.9
"Series C Preferred Stock" Section 2.1
"Series F Preferred Stock" Section 4.2
"Series G Preferred Stock" Section 4.2
"Series H Preferred Stock" Section 2.1
"Stockholders Agreement Amendment" Section 6.10
"Warrants" Section 2.2
"Warrant Shares" Section 2.4
"144A Information" Section 8.3
Certain other terms are defined in the Exhibits hereto and are used therein with
the meanings so defined.
12.2. Action. The term "Action" shall mean any claim, action, cause of
action or suit (in contract or tort or otherwise), arbitration, inquiry,
proceeding or investigation by or before any Governmental Authority.
12.3. Business Day. The term "Business Day" shall mean any day on which
banking institutions in Boston, Massachusetts and New York, New York are
customarily open for the purpose of transacting business.
12.4. By-laws. The term "By-laws" shall include all written rules,
regulations, procedures and by-laws and all other documents relating to the
management, governance or internal regulation of a Person other than an
individual, or interpretive of the Charter of such Person, each as from time to
time amended or modified.
12.5. Charter. The term "Charter" shall include the articles or certificate
of incorporation (including any certificate of designation), statute,
constitution, joint venture or partnership agreement or articles or other
charter of any Person other than an individual, each as from time to time
amended or modified.
12.6. Commission. The term "Commission" shall mean the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act, the Exchange Act or both.
12.7. Consolidated. The term "consolidated" shall mean, when used with
reference to any term, that term as applied to the accounts of the Company (or
other indicated Person) and each of its
Page 30 of 170 Pages
<PAGE>
Subsidiaries, consolidated in accordance with generally accepted accounting
principles after eliminating all inter-company items and with appropriate
deductions for minority interests in Subsidiaries.
12.8. Credit Agreement. The term "Credit Agreement" shall mean the Amended
and Restated Credit and Guaranty Agreement dated as of October 2, 1995 among E-Z
Serve Convenience Stores, Inc., E-Z Serve Corporation, and Societe Generale, as
Agent for certain lenders.
12.9. Distribution. The term "Distribution" shall mean (i) the declaration
or payment of any dividend or other distribution on or in respect of any Equity
Security of any Subject Entity, other than dividends payable on Common Stock
solely in shares of Common Stock and (ii) the purchase, redemption or other
retirement of any Equity Security of any Subject Entity, whether directly or
indirectly through a Subsidiary or otherwise.
12.10. Exchange Act. The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
12.11. Equity Securities. The term "Equity Securities" shall mean, with
respect to any Person which is not a natural person, all shares of capital stock
or other equity or beneficial interests issued by or created in or by such
Person, all stock appreciation or similar rights or grants of, or other
Contractual Obligation for, any right to share in the equity, income, revenues
or cash flow of such Person, and all securities or other rights, warrants or
other Contractual Obligations to acquire any of the foregoing, whether by
conversion, exchange, exercise, preemptive right or otherwise.
12.12. Foreign Trade Regulations. The term "Foreign Trade Regulations"
means (a) any act that prohibits or restricts, or empowers the President or any
executive agency of the United States of America to prohibit or restrict,
exports to or financial transactions with any foreign country or foreign
national, (b) the regulations with respect to certain prohibited foreign trade
transactions set forth at 15 C.F.R. Parts 730 et seq., 22 C.F.R. Parts 120-130
and 31 C.F.R. Parts 500 et seq. and (c) any order, regulation, ruling,
interpretation, direction, instruction or notice relating to any of the
foregoing, all as from time to time in effect.
12.13. Governmental Authority. The term "Governmental Authority" shall mean
any U.S. federal, state or local or any foreign government, governmental
authority, regulatory or administrative agency, governmental commission, court
or tribunal (or any department, bureau or division thereof) or any arbitral
body.
12.14. Indebtedness. The term "Indebtedness" shall have the same meaning as
under the Credit Agreement.
12.15. Legal Requirement. The term "Legal Requirement" shall mean any
federal, state, local or foreign law, statute, standard, ordinance, code, order,
rule, regulation, resolution, promulgation, or any order, judgment or decree of
any court, arbitrator, tribunal or governmental authority, or any license,
franchise, permit or similar right granted under any of the foregoing, or any
similar provision having the force and effect of law.
Page 31 of 170 Pages
<PAGE>
12.16. Lien. The term "Lien" shall mean (a) any mortgage, pledge, lien,
charge, security interest or other similar encumbrance or restriction of any
kind upon any property or assets of any character, or upon the income or profits
therefrom or upon the transfer thereof; (b) any acquisition of or agreement to
have an option to acquire any property or assets upon conditional sale or other
title retention agreement, device or arrangement (including a capitalized
lease); or (c) any sale, assignment, pledge or other transfer for security of
any accounts, general intangibles or chattel paper, with or without recourse.
12.17. Major Holder. The term "Major Holder" with respect to any class of
Investor Securities shall mean (i) you, so long as you hold that class of
Investor Securities, or (ii) any holder of 25% or more of the securities
constituting Investor Securities of that class of Investor Securities then
outstanding
12.18. Material Adverse Change; Material Adverse Effect. The terms
"Material Adverse Change" and "Material Adverse Effect" shall mean,
respectively, any adverse change in or effect on the business, operations,
assets, prospects or condition, financial or otherwise, of any Subject Entity
which, when considered either singly or together with all other adverse changes
and effects with respect to which either such phrase is used in this Agreement,
is material to the Subject Entities considered as one enterprise.
12.19. Person. The term "Person" shall mean an individual, partnership,
limited liability company, corporation, association, trust, joint venture or
unincorporated organization, and any government, governmental department or
agency or political subdivision thereof.
12.20. Public Sale. The term "Public Sale" shall mean a distribution
pursuant to a registration statement under the Securities Act.
12.21. Related Agreements. The term "Related Agreements" shall mean the
Registration Rights Amendment and the Stockholders Agreement Amendment.
12.22. Required Holders. The term "Required Holders" shall mean, with
respect to any class or type of Investor Securities, the holder or holders at
the relevant time (excluding the Subject Entities) of more than 50% of the
number of outstanding shares, as the case may be, of the specified class or type
of Investor Securities.
12.23. Rule 144. The term "Rule 144" shall mean Rule 144 of the
Commission's rules and regulations promulgated under the Securities Act, and any
successor rule or regulation thereto, and in the case of any referenced section
of such Rule, any successor section thereto, collectively and as from time to
time amended and in effect.
12.24. Rule 144A. The term "Rule 144A" shall mean Rule 144A of the
Commission's rules and regulations promulgated under the Securities Act, and any
successor rule or regulation thereto, and in the case of any referenced section
of such Rule, any successor section thereto, collectively and as from time to
time amended and in effect.
Page 32 of 170 Pages
<PAGE>
12.25. Securities Act. The term "Securities Act" shall mean the Securities
Act of 1933, as amended, or any successor federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
12.26. Stockholder. The term "Stockholder" shall mean each Person who holds
any Equity Security of the Company.
12.27. Subject Entity. The term "Subject Entity" shall mean the Company and
each of its Subsidiaries.
12.28. Subsidiary. The term "Subsidiary" shall mean any Person of which the
Company or any other specified Person now or hereafter shall at the time own
directly or indirectly through a Subsidiary at least a majority of the
outstanding capital stock (or other shares of beneficial interest) entitled to
vote generally.
13. EXPENSES, INDEMNITY.
13.1. Expenses. Whether or not the transactions contemplated by this
Agreement shall be consummated, the Company hereby agrees to pay on demand all
reasonable out-of-pocket expenses incurred by you in connection with such
transactions and operations hereunder (other than expenses incurred in the
normal course of investment monitoring) and in connection with any amendments or
waivers (whether or not the same become effective) hereof and of the other
Related Agreements and all expenses incurred by any of you or any holder of any
Investor Securities issued hereunder in connection with the enforcement in good
faith of any rights hereunder, under any other Related Agreement or under the
Charter of the Company, including without limitation: (a) the reasonable cost
and expenses of preparing and duplicating this Agreement; (b) the reasonable
cost of delivering to your principal office, insured to your reasonable
satisfaction, the Investor Securities sold to you hereunder and any Investor
Securities delivered to you in exchange therefor or upon any conversion or
substitution thereof, in any such case insured to your satisfaction; (c) the
reasonable fees, expenses and disbursements of Ropes & Gray in connection with
the transactions contemplated by this Agreement; (d) all taxes (other than taxes
determined with respect to income and transfer taxes that may be payable upon a
transfer), including any recording fees and filing fees and documentary stamp
and similar taxes at any time payable in respect of this Agreement, any other
Related Agreement, or the issuance of any of the Investor Securities; provided,
however, that you and each holder of Investor Securities shall bear the fees and
disbursements of counsel for such of you or such holder in connection with all
opinions rendered by such counsel pursuant to Section 11 hereof.
13.2. Indemnity.
13.2.1. The Company hereby further agrees to indemnify, exonerate and
hold you and each of your stockholders, officers, directors, employees and
agents free and harmless from and against any and all Actions, losses,
liabilities and damages, and any investigation or proceeding instituted by
any Governmental Authority or any other Person, and reasonable expenses in
connection therewith, including without limitation reasonable attorneys'
fees and disbursements, incurred in any capacity by the indemnitee or any
of them as a result of, or arising out of, or relating to any transaction
financed or to be financed in whole or in part directly or indirectly with
proceeds from the sale by the Company of any of the Investor Securities,
except for any
Page 33 of 170 Pages
<PAGE>
of such indemnified liabilities arising on account of any indemnitee's
gross negligence, willful misconduct or bad faith.
13.2.2. Each of the Company and you hereby agree to indemnify each
other against and hold each other harmless from any claim, demand or
liability for any broker's, finder's or placement fees or lender's
incentive fees alleged to have been incurred by the Company or you, as the
case may be, in connection with the transactions contemplated by this
Agreement, including without limitation reasonable legal fees arising in
connection with any such claim, demand or liability; provided, however,
that the Company shall bear the fees and expenses referred to in Section
13.1.
13.3. The obligations of the Company to you under this Section 13 shall
survive the redemption, repurchase or transfer of any or all of the Investor
Securities.
14. NOTICES. Any notice or other communication in connection with this Agreement
or the Investor Securities shall be deemed to be delivered if in writing (or in
the form of a telex or telecopy to be given only during the recipient's normal
business hours unless arrangements have otherwise been made to receive such
notice by telex or telecopy outside of normal business hours) addressed as
provided below and if either (a) actually delivered at said address or (b) in
the case of a letter, seven business days shall have elapsed after the same
shall have been deposited in the United States mails, postage prepaid and
registered or certified:
If to the Company, to it at the address set forth on page 1, with a
courtesy copy (not necessary to constitute notice hereunder) to Bracewell &
Patterson, L.L.P., South Tower, Pennzoil Place, 711 Louisiana Street, Suite
2900, Houston, Texas 77002 (Attention: John L. Keffer), or at such other address
as such Person shall have specified by notice actually received by you.
If to you, to your address set forth on page 1 hereof, or at such other
address as you shall have specified by notice actually received by the Company,
with a copy (not necessary to constitute notice hereunder) to Ropes & Gray, One
International Place, Boston, Massachusetts 02110-2624, Attention: Larry J. Rowe,
Esq.
If to any other holder of record of any Investor Security, to it at its
address set forth in the relevant registers of the Company.
15. SURVIVAL. All covenants, agreements, representations and warranties made
herein or in any other document referred to herein or delivered to you pursuant
hereto or in connection herewith shall be deemed to have been material and
relied on by you, notwithstanding any investigation made by you or on your
behalf, and shall survive the execution and delivery to you of this Agreement
and of the Investor Securities.
16. AMENDMENTS AND WAIVERS. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the Company and Required Holders. Any amendment or waiver
effected in accordance with this Section 16 shall be binding upon each holder of
any Investor Securities and the Company.
Page 34 of 170 Pages
<PAGE>
17. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH
CANNOT BE WAIVED, THE COMPANY AND YOU HEREBY WAIVE, AND COVENANT THAT EACH OF
THEM WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT
TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION, OR
CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR ANY OTHER RELATED
AGREEMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY OBLIGATION HEREUNDER OR
THEREUNDER OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS
OF THE HOLDERS OF INVESTOR SECURITIES OR THE COMPANY OR ANY OF THEM IN
CONNECTION WITH ANY OF THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. EACH PARTY HERETO
ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHER THAT THE PROVISIONS OF THIS
SECTION 17 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH IT HAS RELIED, IS RELYING
AND WILL RELY IN ENTERING INTO THIS AGREEMENT, AND SUCH OF THE RELATED
AGREEMENTS TO WHICH IT IS A PARTY. You or the Company may file an original
counterpart or a copy of this Section 17 with any court as written evidence of
the consent of the other party to the waiver of its right to trial by jury.
18. SERVICE OF PROCESS. The Company, by its execution hereof, (a) hereby
irrevocably submits to the non-exclusive jurisdiction of the state courts of the
Commonwealth of Massachusetts and to the non-exclusive jurisdiction of the
United States District Court for the District of Massachusetts for the purpose
of any suit, action or other proceeding arising out of or based upon this
Agreement or any other Related Agreement or the subject matter hereof or thereof
brought by you or any of your successors or assigns, and (b) hereby waives to
the extent not prohibited by law, and agrees not to assert, by way of motion, as
a defense or otherwise, in any such proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that any such proceeding brought
in one of the above-named courts is improper or that this Agreement or the
subject matter hereof or thereof, may not be enforced in or by such court. The
Company hereby consents to service of process in any such proceeding in any
manner permitted by Massachusetts law and agrees that service of process by
registered or certified mail, return receipt requested, at its address referred
to in or specified pursuant to Section 14 hereof, is reasonably calculated to
give actual notice.
19. APPLICABLE REMEDIES. The Company hereby agrees that the holders of the
Investor Securities have no adequate remedy at law, for monetary compensation or
otherwise, for the damages that would be suffered if the Company were to fail to
comply with its obligations hereunder, and that the Company therefore agrees
that the holders of the Investor Securities shall be entitled to obtain specific
performance of the obligations of the Company herein and therein contained.
20. MISCELLANEOUS. This Agreement, the other Related Agreements, and the Charter
of the Company set forth the entire understanding of the parties hereto with
respect to the transactions contemplated hereby and supersede any prior written
or oral understandings with respect thereto. The invalidity or unenforceability
of any term or provision hereof shall not affect the validity or enforceability
of any other term or provision hereof. The headings in this Agreement are for
convenience of reference only and shall not alter or otherwise affect the
meaning hereof. This Agreement is intended to take effect as a sealed instrument
and may be executed in any number of
Page 35 of 170 Pages
<PAGE>
counterparts which together shall constitute one instrument and shall be
governed by and construed in accordance with the domestic substantive laws of
The Commonwealth of Massachusetts without giving effect to any choice or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective successors
and assigns.
Whether or not any express assignment has been made in this Agreement,
provisions of this Agreement that are for your benefit as the holder of any
Investor Securities are also for the benefit of, and enforceable by, all
subsequent holders of Investor Securities, except as otherwise expressly
provided herein.
Page 36 of 170 Pages
<PAGE>
If the foregoing corresponds with your understanding of our agreement,
kindly sign this letter and the accompanying copies thereof in the appropriate
space below and return one counterpart of the same to the Company whereupon this
letter shall become and be a binding agreement between you and the Company.
Very truly yours,
SEAL E-Z SERVE CORPORATION
Attest: By: /s/ Neil H. McLaurin
Title: ------------------------------
Title: Chairman, President & Chief
Executive Officer
Accepted and Agreed to:
PHEMUS CORPORATION
By: /s/ Michael R. Eisenson
----------------------------
Title: Authorized Signatory
By: /s/ Michael Thonis
----------------------------
Title: Authorized Signatory
Page 37 of 170 Pages
<PAGE>
Schedule I
Home Office Payments
Federal Reserve Wire Transfer Instructions
- ------------------------------------------
Bank: State Street Bank & Trust Company
Boston, MA 02110
ABA Routing No.: 011-000-028
Attn: Harvard College/Private Capital Group
Credit DDA: 3082-068-2
Prior Advisement to: Tami E. Nason at 617-720-4833
Page 38 of 170 Pages
<PAGE>
EXHIBIT P
STOCK REDEMPTION AGREEMENT
This Agreement is made this 27th day of January, 1997 by and between
E-Z SERVE CORPORATION, a Delaware corporation (the "Company,"), Phemus
Corporation, a Massachusetts corporation ("Phemus"), and The John R. Schoemer
Trust for the benefit of John R. Schoemer ("Schoemer"). Phemus and Schoemer are
referred to herein collectively as the "Stockholders" and singularly as a
"Stockholder."
W I T N E S S E T H:
WHEREAS, the Company has authorized 200,000 shares of $6.00 Convertible
Preferred Stock, Series C, of which 75,656 shares are issued and outstanding
("Preferred C Stock");
WHEREAS, the Stockholders are the owners of all such issued and
outstanding Preferred C Stock as follows:
NAME NUMBER OF SHARES
---- ----------------
Phemus 74,702
John R. Schoemer 954
WHEREAS, the Company desires to redeem all of the outstanding shares of
Preferred C Stock in accordance with the terms of the Company's Certificate of
Designation, Preferences and Rights of Preferred C Stock, as amended ("Preferred
C Designation");
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and value consideration, the receipt and sufficiency of which are
hereby acknowledged, it is hereby agreed as follows:
21. Redemption of Shares.
(a) Phemus hereby assigns, transfers and conveys unto the
Company all of its respective right, title and interest in 74,702 shares of the
Preferred C Stock it owns represented by Certificates 005 and 008 (hereinafter
referred to as the "Phemus Shares"). Phemus represents and warrants that (i) it
is the legal and equitable owner of the Phemus Shares transferred by this
Agreement, (ii) it has the right, power and authority to transfer the Phemus
Shares to the Company, and (iii) the Phemus Shares are free and clear of all
liens, charges, security interests, pledges, mortgages or other encumbrances.
Page 39 of 170 Pages
<PAGE>
(b) As consideration for the assignment, transfer and
conveyance of the Phemus Shares to the Company, the Company shall pay to Phemus
in cash as of the date hereof an aggregate amount equal to $8,253,650.02
consisting of a payment of $7,470,200 for the Phemus Shares and $783,450.02 for
all accrued and unpaid dividends on the Phemus Shares.
(c) Schoemer hereby assigns, transfers and conveys unto the
Company all of his respective right, title and interest in 954 shares of the
Preferred C Stock he owns represented by Certificates 009 and 010 (hereinafter
referred to as the "Schoemer Shares"). Schoemer represents and warrants that (i)
he is the legal and equitable owner of the Schoemer Shares transferred by this
Agreement, (ii) he has the right, power and authority to transfer the Schoemer
Shares to the Company, and (iii) the Schoemer Shares are free and clear of all
liens, charges, security interests, pledges, mortgages or other encumbrances.
(d) As consideration for the assignment, transfer and
conveyance of the Schoemer Shares to the Company, Company shall pay to Schoemer
in cash as of the date hereof an aggregate amount equal to $105,405.23
consisting of a payment of $95,400 for the Schoemer Shares and $10,005.23 for
all accrued and unpaid dividends on the Schoemer Shares.
(e) The Stockholders hereby waive the required notice period
for redemption set forth in the Preferred C Designation.
(f) The Stockholders have delivered to the Company the
certificates representing the Phemus Shares and the Schoemer Shares, as
applicable, endorsed for transfer or together with stock powers executed in
blank.
22. Miscellaneous.
(a) This Agreement shall be binding and inure to the benefit
of the successor and assigns of each party to this Agreement.
(b) This Agreement sets forth the entire agreement and
understanding between the parties hereto, and supersedes all prior terms and
agreements by and among the parties.
(c) This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together will constitute one and the same instrument.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
[The rest of this page has been intentionally left blank.]
Page 40 of 170 Pages
<PAGE>
IN WITNESS WHEREOF, the Company and the Stockholders have executed this
Agreement on this 27th day of January, 1997.
E-Z SERVE CORPORATION
By: /s/ Neil H. McLaurin
------------------------
Neil H. McLaurin
President
PHEMUS CORPORATION
By: /s/ Michael R. Eisenson
------------------------
Name: Michael R. Eisenson
By: /s/ Michael Thonis
------------------------
Name: Michael Thonis
THE JOHN R. SCHOEMER TRUST
FOR THE BENEFIT OF JOHN R. SCHOEMER
By: /s/ John R. Schoemer
------------------------
John R. Schoemer
Trustee
Page 41 of 170 Pages
<PAGE>
EXHIBIT Q
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
This Amendment No. 1 to Stockholders Rights Agreement ("Amendment") is made
as of January 27, 1997, by and among E-Z Serve Corporation, a Delaware
Corporation (the "Company"), Phemus Corporation, a Massachusetts corporation
("Phemus"), Intercontinental Mining & Resources Incorporated, a British Virgin
Islands corporation ("IMR"), Quadrant Capital Corp., a Delaware corporation,
formerly named Intercontinental Mining & Resources Limited ("QCC"), DLJ Capital
Corporation, a Delaware corporation ("DLJ"), and Tenacqco Bridge Partnership, a
New York partnership ("Tenacqco"). Phemus, IMR, QCC, DLJ and Tenacqco are
referred to herein together as the "Holders."
WHEREAS, the Company, the Holders and certain employees of the Company
entered into that certain Amended and Restated Stockholders Agreement dated as
of June 1, 1994 (the "Agreement"); and
WHEREAS, as of the date hereof, the Company has issued warrants to purchase
common stock of the Company to Phemus in conjunction with the issuance by the
Company of shares of its Series H Preferred Stock, par value $0.01 per share
("Series H Preferred Stock"); and
WHEREAS, simultaneously with the issuance of the Series H Preferred Stock,
the Company shall use a portion of the proceeds from such issuance to redeem all
of the outstanding shares of the Company's $6.00 Convertible Preferred Stock,
Series C ("Series C Preferred Stock"); and
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
1. As required by Section 3.2 of the Agreement, the parties hereto
consent to the issuance of the Series H Preferred Stock to Phemus and
the redemption of all of the outstanding shares of the Series C
Preferred Stock.
Page 42 of 170 Pages
<PAGE>
2. Section 3.1(a) of the Agreement is hereby amended in its entirety to
be as follows:
(a) The Board of Directors shall be composed of seven members, except
to the extent required to be increased pursuant to the terms of the
Certificate of Designation of the Series H Preferred Stock.
3. A new Section 3.1(d) is hereby added to the Agreement as follows:
(d) Each Holder agrees that it will vote all of its shares of Common
Stock and Options, at any regular or special meeting of the stockholders of
the Issuer called for the purpose of filling positions of the Directors or
to increase the number of authorized shares of Common Stock, or in any
written consent executed in lieu of such a meeting of stockholders, and
shall take all actions necessary, to ensure the election of a director
nominated by the holders of the Series H Preferred Stock pursuant to the
terms of the Certificate of Designation of Series H Preferred Stock or to
increase the number of authorized shares of Common Stock, if necessary, to
ensure the ability of Phemus to exercise in full any warrants issued or
issuable pursuant to the Securities Purchase Agreement dated January 27,
1997, between Phemus and the Company, as applicable. If the holders of
Series H Preferred Stock are entitled to a special directorship pursuant to
Section 7B(iv) of the Certificate of Designation for the Series H Preferred
Stock, Section 3.2(a) of this Agreement shall no longer be applicable
during the period in which the holders of Series H Preferred Stock are so
entitled. During such period, if the Issuer proposed to take any action,
but such action is not approved by the requisite percentage (under
applicable law) of the Issuer's outstanding shares of Common Stock, if such
approval is required by applicable law, then: (i) Phemus shall have the
right to invoke as a Triggering Holder the Buy-Sell described in Section
3.2(b) and (c) of this Agreement in accordance with such provisions, and
(ii) the other Holders shall respond in accordance with Section 3.2(c) of
this Agreement to the Trigger Price set by Phemus.
4. Section 4.2(a) of the Agreement is hereby amended in its entirety to
be as follows:
(a) Any term of this Agreement may be amended or waived only with the
written consent of each of the Holders; provided, however, that the
Company, without the consent of the Holders, may amend Schedule 1 to this
Agreement to reflect changes to the number of fully-diluted shares of
Common Stock held by the Holders. The Company shall promptly distribute to
the Holders any amended Schedule 1.
5. Schedule 1 to the Agreement is amended in its entirety to be as set
forth in Schedule 1 attached hereto.
Except as expressly amended herein, the Agreement shall remain in full force and
effect.
Page 43 of 170 Pages
<PAGE>
[The rest of this page has been intentionally left blank.]
Page 44 of 170 Pages
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date first above written.
E-Z SERVE CORPORATION
By: /s/ John T. Miller
----------------------------
Name: John T. Miller
Title: Senior Vice President
PHEMUS CORPORATION
By: /s/ Michael R. Eisenson
----------------------------
Name: Michael R. Eisenson
By: /s/ Michael Thonis
----------------------------
Name: Michael Thonis
QUADRANT CAPITAL CORP.
By:
----------------------------
Name:
Title:
INTERCONTINENTAL MINING & RESOURCES INCORPORATED
By: /s/ Thomas A. Huser
----------------------------
Name: Thomas A. Huser
Title:
Page 45 of 170 Pages
<PAGE>
DLJ CAPITAL CORPORATION
By: /s/ Paul Thompson III
----------------------------
Name: Paul Thompson III
Title: Vice President
TENACQCO BRIDGE PARTNERSHIP
By DLJ Capital Corporation, its General Partner
By: /s/ Paul Thompson III
----------------------------
Name: Paul Thompson III
Title: Vice President
Page 46 of 170 Pages
<PAGE>
SCHEDULE 1
Number of Shares of Common Stock
Holder on a Fully Diluted Basis
------ --------------------------------
DLJ Capital / Tenacqco 29,715,364
Phemus 17,660,457
IMR / Quadrant 14,802,325
Page 47 of 170 Pages
<PAGE>
EXHIBIT R
SECURITIES SALE AGREEMENT
This SECURITIES SALE AGREEMENT (the "Agreement") is made as of the 31st day
of January, 1997 between Phemus Corporation, a Massachusetts corporation (the
"Seller") and Intercontinental Mining & Resources Incorporated, a British Virgin
Islands corporation (the "Purchaser").
The Seller owns 140,000 shares of Series H Preferred Stock, $0.01 par value
(the "Series H Preferred Stock") and warrants to purchase 960,000 shares of the
common stock, $0.01 par value (the "Common Stock") of E-Z Serve Corporation (the
"Company"). The Series H Preferred Stock and the warrants are not registered
under the Securities Act of 1933 or under the securities laws of any state. The
Seller desires to sell, and the Purchaser desires to buy 33,600 shares of the
Series H Preferred Stock and warrants to purchase 230,400 shares of Common Stock
on the terms and conditions set forth in this Agreement.
1. Sale of Shares. Subject to and in reliance on the representations,
warranties, terms and conditions of this Agreement, the Seller agrees to sell,
transfer and assign to the Purchaser and, subject to and in reliance upon the
representations, warranties, terms and conditions of this Agreement, the
Purchaser agrees to purchase from the Seller 33,600 shares of Series H Preferred
Stock and warrants to purchase 230,400 shares of Common Stock (the "Purchase
Securities") for an aggregate price of $2,144,724 (the "Purchase Price").
Nothing in this Agreement shall affect Seller's ownership and other rights in
securities of the Company other than the Purchase Securities.
2. Closing. The Closing of the purchase and sale of the Purchase Securities
under this Agreement (the "Closing") shall be held at the offices of Ropes &
Gray, One International Place, Boston, Massachusetts on January 31, 1997 or any
other earlier time, date and place as to which the Seller and the Purchaser may
agree. At the Closing, the Seller will cause to be delivered to the Purchaser
(a) a certificate or certificates in good form for transfer, representing the
33,600 shares of Series H Preferred Stock to be purchased by the Purchaser from
the Seller together with a stock power executed in blank, and (b) a warrant to
purchase 230,400 shares of Common Stock together with an Assignment of Warrant,
(substantially in the form of Exhibit 1 hereto) against payment therefor by wire
transfer by the Purchaser to the Seller in the amount of $2,144,724.
3. Representations of the Seller. The Seller represents and warrants to the
Purchaser and agrees as follows:
Page 48 of 170 Pages
<PAGE>
(a) Ownership of Stock. The Seller is the sole record and beneficial owner
of at least the number of Purchase Securities proposed to be sold
hereunder, the Seller has valid and unencumbered title to the Purchase
Securities, free and clear of any liens and encumbrances, and free and
clear of any rights and restrictions of any nature other than those
imposed by applicable federal and state laws and by the Amended and
Restated Stockholders Agreement dated June 1, 1994, as last amended on
January 27, 1997, among E-Z Serve Corporation, Phemus Corporation,
Intercontinental Mining & Resources Incorporated, Quadrant Capital
Corp., DLJ Capital Corporation, and Tenacqco Bridge Partnership (the
"Stockholders Agreement"). The performance by the Seller of his
obligations hereunder will be effective to transfer valid and
unencumbered title to the Purchaser of the Purchase Securities free
and clear of any liens and encumbrances, and free and clear of rights
and restrictions of any nature other than those imposed by applicable
federal and state laws and by the Stockholders Agreement.
(b) Authority. This Agreement has been duly executed and delivered by the
Seller and constitutes the valid and binding obligation of the Seller,
enforceable in accordance with its terms. The execution, delivery and
performance of this Agreement has been duly authorized by all
necessary action on the part of the Seller.
(c) Effect of Transactions. The execution, delivery and performance of
this Agreement and compliance with the provisions hereof by the
Seller, do not and will not, with or without the passage of time or
the giving of notice or both, (a) violate any provision of law,
statute, rule or regulation or any ruling, writ, injunction, order,
judgment or decree of any court, administrative agency or other
governmental body, or (b) conflict with or result in any breach of any
of the terms, conditions or provision of, or constitute a default
under any agreement or other instrument or document to which the
Seller is a party or by which the Purchase Securities are bound or
affected, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the Purchase Securities.
(d) No Rights of First Refusal. The execution, delivery and performance of
this Agreement and the transfer of the Purchase Securities shall not
be subject to any rights to purchase the Purchase Securities except as
to any rights to purchase the Purchase Securities that have been duly
waived in writing prior to Closing.
(e) Sufficiency. The execution, delivery and performance of this Agreement
is sufficient to transfer all right, title and interest in the
Purchase Securities from the Seller to the Purchaser, and to cause a
transfer of title to the Purchase Securities to be made on the stock
transfer books of the Company.
Page 49 of 170 Pages
<PAGE>
(f) Instruments and Agreements. There are no contracts, instruments or
agreements that govern or affect the Purchase Securities.
(g) Experience and Knowledge. The Seller has substantial experience in
evaluating and investing in private placement transactions of
securities in companies similar to the Company and is capable of
evaluating the merits and risks of selling the Purchase Securities.
The Seller has had access to and an opportunity to inspect all
relevant information relating to the Company, including financial
statements of the Company, sufficient to enable it to evaluate the
merits and risks of the sale of the Purchase Securities hereunder. The
Seller has had an opportunity to ask questions of officers of the
Company and has received satisfactory answers respecting, and has
obtained such additional information as it desired regarding, the
business, financial condition and affairs of the Company. The Seller
has conducted its own investigation of the Company and the Seller is
satisfied with the results thereof. The Seller is not relying on any
information provided by the Purchaser and has not asked for nor has it
received any advice from the Purchaser as to its determination to sell
the Purchase Securities.
(h) No Brokers or Finders. No person has or will have, as a result of the
transaction contemplated by this Agreement, any right, interest or
valid claim against or upon the Purchaser for any commission, fee, or
other compensation as a finder or broker because of any act or
omission by the Seller; and the Seller agrees to indemnify and hold
the Purchaser harmless against any such commissions, fees or other
compensation.
4. Representations of the Purchaser. The Purchaser represents, warrants and
agrees as follows:
(a) Authority. This Agreement has been duly executed and delivered by the
Purchaser and constitutes the valid and binding obligation of the
Purchaser, enforceable in accordance with its terms. The execution,
delivery and performance of this Agreement has been duly authorized by
all necessary action on the part of the Purchaser.
(b) No Brokers or Finders. No person has or will have, as a result of the
transactions contemplated by this Agreement, any right, interest or
valid claim against or upon the Seller for any commission, fee or
other compensation as a finder or broker because of any act or
omission by the Purchaser, and the Purchaser agrees to indemnify and
hold the Seller harmless against any such commissions, fees or other
compensation.
Page 50 of 170 Pages
<PAGE>
(c) Effect of Transactions. The execution, delivery and performance of
this Agreement in compliance with the provisions hereof by the
Purchaser, do not and will not with or without the passage of time or
the giving of notice or both, violate any provision of law, statute,
rule or regulation or any ruling, writ, injunction, order, judgment or
decree of any court, administrative agency, or other governmental
body.
(d) Experience and Knowledge. The Purchaser has substantial experience in
evaluating and investing in private placement transactions of
securities in companies similar to the Company and is capable of
evaluating the merits and risks of the purchase of the Purchase
Securities. The Purchaser has had access to and an opportunity to
inspect all relevant information relating to the Company, including
financial statements of the Company, sufficient to enable it to
evaluate the merits and risks of the purchase of the Purchase
Securities hereunder. The Purchaser has had an opportunity to ask
questions of officers of the Company and has received satisfactory
answers respecting, and has obtained such additional information as it
has desired regarding, the business, financial condition and affairs
of the Company. The Purchaser is not relying on any information
provided by the Seller and has not asked for nor has it received any
advice from the Seller as to its determination to purchase the
Purchase Securities.
(e) Investment Intent. The Purchaser is an "accredited investor" as that
term is defined in Rule 501(a) of Regulation D of the Securities Act
of 1933, as amended. The purchaser is purchasing the Purchase
Securities for investment and not with a view to distribution. The
purchaser acknowledges that the Purchase Securities have not been
registered under the Securities Act of 1933, as amended, or under
applicable state securities laws, and that the Purchase Securities may
only be disposed of pursuant to an effective registration statement
under the Securities Act of 1933, as amended, and under applicable
state securities laws, or pursuant to exemptions therefrom, and in
accordance with the stockholders agreement.
5. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which will be
deemed one instrument.
6. Survival of Representations and Warranties. All representations and
warranties made by the Seller or the Purchaser in this Agreement, or any other
instrument or document delivered in connection herewith, shall survive the
Closing.
7. Notices. All notices made under this Agreement shall be in writing and
shall be mailed, postage prepaid, to the Seller at:
Page 51 of 170 Pages
<PAGE>
Phemus Corporation
600 Atlantic Avenue, 26th Floor
Boston, Massachusetts 02210
Attention: Mr. John M. Sallay
with a copy to: Larry Jordan Rowe, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
and to the Seller at: Intercontinental Mining & Resources Incorporated
c/o P. M. M. Services (B.V.I.) Limited
P. O. Box 438
Tropic Isle Building
Wickhams Cay
Road Town, Tortola
British Virgin Islands
Attention: Mr. Alan Quasha
with a copy to: Thomas A. Huser, Esq.
Quadrant Management, Inc.
127 East 73rd Street
New York, New York 10021
or to such other address as may be furnished in writing to the other parties
hereto.
8. Prior Agreements; Amendments. There are no representations or warranties
relating to the Purchase Securities or the transaction contemplated hereby
except as set forth in this Agreement. This Agreement constitutes the entire
agreement between the parties and supersedes any prior representations,
warranties, understandings or agreements concerning the subject matter hereof.
This Agreement shall not be modified or amended except by a writing signed by
both parties.
9. Severability. The invalidity or unenforceability of any provision hereof
shall in no way affect the validity or enforceability of any other provision.
10. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of The Commonwealth of Massachusetts.
Page 52 of 170 Pages
<PAGE>
11. Headings. Article, Section and Subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of the Agreement for any other purpose.
IN WITNESS WHEREOF, the parties have executed this Securities Purchase
Agreement on the date first above written.
SELLER
------
PHEMUS CORPORATION
By: /s/ John M. Sallay
----------------------------
Title: Authorized Signatory
By: /s/ Michael Thonis
----------------------------
Title: Authorized Signatory
PURCHASER
---------
INTERCONTINENTAL MINING &
RESOURCES INCORPORATED
By: /s/ Thomas A. Huser
----------------------------
Title:
Page 53 of 170 Pages
<PAGE>
Exhibit 1
ASSIGNMENT OF WARRANT
For value received, the undersigned registered holder of the within
Warrant hereby sells, assigns and transfers unto Intercontinental Mining &
Resources Incorporated the right represented by such Warrant to purchase 230,400
shares of Common Stock of E-Z SERVE CORPORATION to which such Warrant relates,
and appoints John Miller Attorney to make such transfer on the books of E-Z
SERVE CORPORATION maintained for such purpose, with full power of substitution
in the premises.
Dated: 1/31/97
PHEMUS CORPORATION
c/o Harvard Management Company, Inc.
600 Atlantic Avenue
Boston, Massachusetts 02210
By: /s/ Michael Thonis
----------------------
By: /s/ Tami E. Nason
----------------------
Signed in the presence of:
/s/ Kelly A. Standel
- -----------------------------
Page 54 of 170 Pages
<PAGE>
Schedule I
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ___)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 22, 1991
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 55 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 1,158,708 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | None |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 1,158,708 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | None |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 1,158,708 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 14.5% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 56 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.1 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 22, 1991
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 57 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 1,778,608 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | None |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 1,778,608 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | None |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 1,778,608 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 22.2% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 58 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.1 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 22, 1991
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 59 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | None |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | None |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 1.5% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 60 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 22, 1991
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 61 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | None |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | None |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.8% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 62 of 170 Pages
<PAGE>
SCHEDULE 13D
Item 1. Security and Issuer.
This statement relates to the Common Stock, $0.01 par value (the
"Common Stock"), of E-Z Serve Corporation, a Delaware corporation (the
"Issuer"), which has its principal executive offices at 10700 North Freeway,
Suite 500, Houston, Texas 77037. The statement is filed with regard to events
that occurred on March 22, 1991 (the "Reporting Date").
Item 2. Identity and Background.
This statement is filed by The President and Fellows of Harvard
College, a Massachusetts educational corporation ("Harvard"), Aeneas Venture
Corporation ("Aeneas"), a Delaware corporation that is a subsidiary solely and
directly controlled by Harvard and title-holding company for the endowment fund
of Harvard University, Phemus Corporation ("Phemus"), a Massachusetts
corporation that is a wholly-owned subsidiary of Harvard and title-holding
company for the endowment fund of Harvard University and the Harvard-Yenching
Institute ("HYI"), a Massachusetts nonprofit corporation. The principal
executive offices of Aeneas and Phemus are located at 600 Atlantic Avenue, 15th
Floor, Boston, Massachusetts 02210. The principal executive offices of Harvard
are located at Massachusetts Hall, Cambridge, Massachusetts 02138. The principal
executive offices of HYI are located at 2 Divinity Avenue, Cambridge,
Massachusetts 02138.
Aeneas and Phemus are charitable title-holding companies for a portion
of the endowment fund of Harvard University. Harvard is a Massachusetts
educational corporation that administers the endowment fund of Harvard
University. HYI is a Massachusetts nonprofit corporation.
Aeneas' and Phemus' activities are carried on from their offices
located at 600 Atlantic Avenue, Boston, Massachusetts. Harvard's activities are
carried on from its office located at Massachusetts Hall, Cambridge,
Massachusetts. HYI's activities are carried on from its office located at 2
Divinity Avenue, Cambridge, Massachusetts.
Information relating to the directors and executive officers of Aeneas,
Phemus and HYI as well as the individual President and Fellows of Harvard
College and other executive officers of Harvard are contained in Exhibit B
attached hereto and incorporated herein by reference. All of the executive
officers and directors of Aeneas, Phemus, HYI and Harvard are citizens of the
United States of America.
None of Aeneas, Phemus, Harvard or HYI or, to the best of Aeneas',
Phemus', Harvard's or HYI's knowledge or belief, any of the persons listed in
Exhibit A has, during the past five years, been convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors). Neither
Aeneas, Phemus, Harvard nor HYI nor, to the best of Aeneas', Phemus', Harvard's
or HYI's knowledge and belief, any of the persons listed in Exhibit B has,
during the past five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment,
Page 63 of 170 Pages
<PAGE>
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The source of funds used to purchase the securities of the Issuer to
which this Statement relates held by each of Aeneas, Phemus, Harvard and HYI
have been general funds (and income received therefrom) respectively, of Aeneas,
Phemus, Harvard and HYI.
Pursuant to the terms of a Stock Purchase Agreement dated March 30,
1990 and subsequently amended on December 4, 1990 and March 14, 1991 among,
inter alia, the Issuer, Aeneas, Harvard and HYI, Aeneas, Harvard and HYI
received rights to acquire 77,500 shares, 124,000 shares and 31,000 shares
respectively, of Common Stock. All shares issued in this exchange transaction
were issued on or before the closing of the Rights Offering.
As a result of the distribution by the Issuer's parent corporation,
Harken Energy Corporation, a Delaware corporation ("HEC"), to all of HEC's
stockholders on the Reporting Date of rights to purchase shares of common stock
of the Issuer and common stock of Tejas Power Corporation ("Tejas"), Aeneas,
Phemus, Harvard and HYI received rights to acquire 1,081,208 shares, 108,556
shares, 124,000 shares and 31,000 shares respectively, of Common Stock. All
shares issued in the Rights Offering were issued on or before the closing of the
Rights Offering. The exercise price of the rights was $8.00 per unit, each unit
consisting of one share of Common Stock of the Issuer and one share of the Class
A Common Stock of Tejas (a "Unit"). The terms and conditions of the issuance and
exercise of the rights (the "Rights Offering") are more particularly set forth
under the caption "The Rights Offering" in the Registration Statement on Form
S-1 under the Securities Act of 1933 filed by the Issuer and Tejas relating to
the Rights Offering, which Registration Statement is referenced as Exhibit C
attached hereto (the "Registration Statement").
Pursuant to the terms of a Standby Purchase Agreement dated September
18, 1990 and amended on December 6, 1990 and March 14, 1991, among, inter alia,
the Issuer and Phemus, which is referenced as Exhibit D hereto (the "Standby
Agreement"), Phemus received, at the conclusion of the Rights Offering 1,288,953
Units (including 1,288,953 shares of the Issuer's Common Stock and 1,288,953
shares of Class A Common Stock of Tejas). In addition, Phemus received, at the
conclusion of the Rights Offering 40,382 Units (including 40,382 shares of the
Issuer's Common Stock and 40,382 shares of Class A Common Stock of Tejas) in
lieu of a cash discount on the purchase price of the Units purchased by it in
the Rights Offering. Such discount was granted to Phemus by the Issuer and Tejas
in consideration of Phemus' commitment under the Standby Agreement to purchase
certain shares of the Issuer and Tejas not purchased by other stockholders of
HEC pursuant to the Rights Offering.
Pursuant to a Credit Agreement dated May 25, 1990 and subsequently
amended on September 28, 1990, October 2, 1990, December 6, 1990 and March 14,
1991, among, inter alia, the Issuer and Phemus, which is referenced as Exhibit E
hereto, Phemus received at the conclusion of the Rights Offering 216,717 shares
of Common Stock as partial payment for original issue discount owed to Phemus by
HEC, the Issuer and Tejas in respect of certain loans made by
Page 64 of 170 Pages
<PAGE>
Phemus to HEC, the Issuer and Tejas under the Credit Agreement. The price per
share for these shares was $2.175.
The foregoing summaries of certain agreements and instruments relating
to the transactions described herein are qualified in their entirety by
reference to the complete texts thereof, set forth in applicable exhibits
hereto.
On each of May 3, 1991 and June 13, 1991 Phemus acquired 62,000 shares
of Common Stock from Harvard. The ownership of Common Stock reflected in this
Schedule 13D takes into account the effect of these transactions.
Item 4. Purpose of the Transaction.
Each of Aeneas, Phemus, Harvard and HYI has purchased the shares of
Common Stock it beneficially owns as of the date of this statement for
investment purposes. Phemus entered into the Standby Agreement and the Credit
Agreement for the purpose of assisting HEC, the Issuer and Tejas in consummating
the Rights Offering.
Neither Aeneas, Phemus, Harvard nor HYI has any plans or proposals
which relate to or would result in any of the actions set forth in parts (b)
through (j) of Item 4. Aeneas, Phemus, Harvard and HYI are at this time filing
this Schedule 13D insofar as the size of their aggregate ownership is 39.0% of
the Issuer. Each of Aeneas, Phemus, Harvard and HYI disclaims any intention to
influence control of management of the Issuer.
Item 5. Interest in Securities of the Issuer.
(a), (b). Aeneas is the beneficial owner of 1,158,708 shares of the
Common Stock (approximately 14.5% of the shares of Common Stock based upon the
most recently available filing by the Issuer with the Securities and Exchange
Commission and including shares of Common Stock which Aeneas has the right to
acquire beneficial ownership of within 60 days). Phemus is the beneficial owner
of 1,778,608 shares of Common Stock (approximately 22.2% of the shares of Common
Stock based upon the most recent filing of the Issuer with the Securities and
Exchange Commission and including shares of Common Stock which Phemus has the
right to acquire beneficial ownership of within 60 days). Harvard is the
beneficial owner of 124,000 shares of the Common Stock (approximately 1.5% of
the shares of Common Stock based upon the most recently available filing by the
Issuer with the Securities and Exchange Commission and including shares of
Common Stock which Harvard has the right to acquire the beneficial ownership of
within 60 days). HYI is the beneficial owner of 62,000 shares of Common Stock
(approximately 0.8% of the shares of the Common Stock based upon the most
recently available filing by the Issuer with the Securities and Exchange
Commission and including shares of Common Stock which HYI has the right to
acquire beneficial ownership of within 60 days).
Each of Aeneas, Phemus, Harvard and HYI is the beneficial owner of all
of the shares of Common Stock to which this statement relates held in its name,
and each has sole power to vote and dispose of all of such shares.
Page 65 of 170 Pages
<PAGE>
To the best of Aeneas', Phemus', Harvard's and HYI's knowledge and
belief, none of the other officers or directors of Aeneas, Phemus, HYI or The
President and Fellows of Harvard beneficially owns any shares of the Common
Stock of the Issuer.
(c). Neither Aeneas, Phemus, Harvard nor HYI has engaged in any
transactions in the Common stock of the Issuer during the past 60 days. To the
best of Aeneas', Phemus', Harvard's and HYI's knowledge and belief, none of the
directors or executive officers of Aeneas, Phemus or HYI nor any of the
President or Fellows or other executive officers of Harvard has engaged in any
transactions in the Common Stock of the Issuer during the past 60 days.
(d). None.
(e). Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of Issuer
Harvard Management Company, Inc. ("HMC") has full discretion to direct
the receipt of dividends from and vote the shares of the Issuer held by Aeneas
and Phemus. HMC is a charitable membership corporation operated for the benefit
of Harvard.
Item 7. Material to be Filed as Exhibits.
Page
Exhibit A: Information concerning Reporting Persons. 15
Exhibit B: Information concerning Reporting Persons' 16
officers, directors and others.
Exhibit C: Registration Statement (Registration No. 33-37141) on Form
S-1 under the Securities Act of 1933 dated March 22, 1991 (the
"Registration Statement") filed by E-Z Serve Corporation and Tejas
Power Corporation with the Securities and Exchange Commission (all
information set forth under the captions "The Rights Offering" and
"Related Exchange Transactions") (incorporated by reference to such
filing).
Exhibit D: Standby Purchase Agreement dated September 18, 1990 and
subsequently amended, among, inter alia, E-Z Serve Corporation and
Phemus Corporation (incorporated by reference to Exhibit 10.2 to the
Registration Statement).
Exhibit E: Credit Agreement dated May 25, 1990 and subsequently
amended, among, inter alia, E-Z Serve Corporation and Phemus
Corporation (incorporated by reference to Exhibit 10.1 to the
Registration Statement).
Page 66 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: September 19, 1991
AENEAS VENTURE CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Vice President/Treasurer
PHEMUS CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD-YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 67 of 170 Pages
<PAGE>
EXHIBIT A
Member of Group Classification of Member
Aeneas Venture Corporation CO
Phemus Corporation CO
The President and Fellows of
Harvard College EP
Harvard-Yenching Institute EP
Page 68 of 170 Pages
<PAGE>
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210.
I. Directors of Aeneas
Present Principal
Name Occupation
---- ----------
Jack R. Meyer President, Harvard Management
Company, Inc.
Michael Eisensen Managing Partner, Aeneas
Group, Inc.
Scott Sperling Managing Partner, Aeneas
Group, Inc.
II. Executive Officers of Aeneas (in addition to those listed
above under (I))
Office/Position
Name with Aeneas
Vacancy Chairman of the Board of Directors
Jack Meyer, President
Henry J. Ameral Vice President
Verne O. Sedlacek Vice President and Treasurer
Michael G. Thonis Vice President
Scott M. Sperling Vice President
Michael R. Eisenson Vice President
Maureen Streeter Secretary
Tami Nason Assistant Secretary
III. Trustees of HYI
Page 69 of 170 Pages
<PAGE>
Present Principal
Name Occupation
---- ----------
Professor Henry Rosovsky, Professor, Harvard University
Chairman
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the
Clarence and Anne Dillon
Dunwalke Trust
Dr. James T. Lavey President, Emory University
Dr. David V. Vikner President, United Board for
Christian Higher Education in Asia
Dr. Nathan M. Pusey Retired President, Harvard University
Mr. Galen L. Stone Private Investor
IV. Executive Officers of HYI (in addition to those listed
under (III))
Office/Position
Name with HYI
---- --------
Professor Patrick Hannan Director
Edward J. Baker Assistant Director
V. President and Fellows of Harvard and Other Executive
Officers of Harvard
Page 70 of 170 Pages
<PAGE>
Office/Position
Name with Harvard
---- ------------
Neil Rudenstine President
Robert Shenton Secretary
D. Robert Daniel Treasurer
Charles P. Slichter Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Vacancy(1) Fellow
Henry Rosovsky Fellow
Daniel Steiner Vice President and
General Counsel
Sally Zeckhauser Vice President
Fred L. Glimp Vice President of
Alumni Affairs
Robert Scott Vice President of
Financial Affairs
John Shattuck Vice President of
Government,
Community and
Public Affairs
VI. Directors of Phemus
Present Principal
Name Occupation
---- ----------
Jack R. Meyer President, Harvard
Management Company
- --------
(1) Coleman M. Mockler, Jr., a Fellow, died in January, 1991.
A successor has not yet been named to fill the vacancy created by
Mr. Mockler's death.
Page 71 of 170 Pages
<PAGE>
Verne O. Sedlacek Treasurer, Harvard
Management Company
Michael R. Eisenson Managing Partner, Aeneas
Venture Group
VII. Executive Officers of Phemus (in addition to those listed
above under (VI))
Office/Position
Name with Phemus
---- -----------
Jack R. Meyer President
Verne O. Sedlacek Treasurer
Maureen S. Streeter Clerk/Secretary
Page 72 of 170 Pages
<PAGE>
Schedule II
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 10, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 73 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 74 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 10, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 75 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 2,937,592 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 2,937,592 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 2,937,592 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 36.7% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 76 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 10, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 77 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 1.5% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 78 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02210 (617) 951-7410
(617) 523-4400
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 10, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 79 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 shares |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 shares |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 shares |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.8% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|--------------------------------------------------------------------------
Page 80 of 170 Pages
<PAGE>
SCHEDULE 13D
Amendment No. 1
This Amendment No. 1 is being filed to amend Items 3, 4, 5(a)-(c) and 6
of the Initial Schedule 13D filed on September 19, 1991 (the "Initial Filing").
As amended, Items 3, 4, 5(a)-(c) and 6 should read in full as follows:
Item 3. Source and Amount of Funds or Other Consideration.
The source of funds used to purchase the securities of the Issuer to
which this Statement relates held by each of Aeneas, Phemus, Harvard and HYI
have been general funds (and income received therefrom) respectively, of Aeneas,
Phemus, Harvard and HYI.
Pursuant to the terms of a Stock Purchase Agreement dated March 30,
1990 and subsequently amended on December 4, 1990 and March 14, 1991 among,
inter alia, the Issuer, Aeneas, Harvard and HYI, Aeneas, Harvard and HYI
received rights to acquire 77,500 shares, 124,000 shares and 31,000 shares
respectively, of Common Stock. All shares issued in this exchange transaction
were issued on or before the closing of the Rights Offering.
As a result of the distribution by the Issuer's parent corporation,
Harken Energy Corporation, a Delaware corporation ("HEC"), to all of HEC's
stockholders on the Reporting Date of rights to purchase shares of Common Stock
of the Issuer and Class A Common Stock of Tejas Power Corporation ("Tejas"),
Aeneas, Phemus, Harvard and HYI received rights to acquire 1,081,208 shares,
108,556 shares, 124,000 shares and 31,000 shares respectively, of Common Stock.
All shares issued in the Rights Offering were issued on or before the closing of
the Rights Offering. The exercise price of the rights was $8.00 per unit, each
unit consisting of one share of Common Stock of the Issuer and one share of the
Class A Common Stock of Tejas (a "Unit"). The terms and conditions of the
issuance and exercise of the rights (the "Rights Offering") are more
particularly set forth under the caption "The Rights Offering" in the
Registration Statement on Form S-1 under the Securities Act of 1933 filed by the
Issuer and E-Z Serve relating to the Rights Offering, which Registration
Statement is referenced as Exhibit C attached to the Initial Filing (the
"Registration Statement").
Pursuant to the terms of a Standby Purchase Agreement dated September
18, 1990 and amended on December 6, 1990 and March 14, 1991, among, inter alia,
the Issuer and Phemus, which is referenced as Exhibit D to the Initial Filing
(the "Standby Agreement"), Phemus received, at the conclusion of the Rights
Offering 1,288,953 Units (including 1,288,953 shares of the Issuer's Common
Stock and 1,288,953 shares of Common Stock of E-Z Serve). In addition, Phemus
received, at the conclusion of the Rights Offering 40,382 Units (including
40,382 shares of the Issuer's Common Stock and 40,382 shares of Class A Common
Stock of Tejas in lieu of a cash discount on the purchase price of the Units
purchased by it in the Rights Offering. Such discount was granted to Phemus by
the Issuer and E-Z Serve in consideration of
Page 81 of 170 Pages
<PAGE>
Phemus's commitment under the Standby Agreement to purchase certain shares of
the Issuer and E-Z Serve not purchased by other stockholders of HEC pursuant to
the Rights Offering.
Pursuant to a Credit Agreement dated May 25, 1990 and subsequently
amended on September 28, 1990, October 2, 1990, December 6, 1990 and March 14,
1991, among, inter alia, the Issuer and Phemus, which is referenced as Exhibit E
hereto, Phemus received at the conclusion of the Rights Offering 216,718 shares
of Common Stock as partial payment for original issue discount owed to Phemus by
HEC, the Issuer and E-Z Serve in respect of certain loans made by Phemus to HEC,
the Issuer and E-Z Serve under the Credit Agreement. The price per share for
these shares was $2.175.
The foregoing summaries of certain agreements and instruments relating
to the transactions described herein are qualified in their entirety by
reference to the complete texts thereof, set forth in applicable exhibits to the
Initial Filing.
On each of May 3, 1991 and June 13, 1991 Phemus acquired 62,000 shares
of Common Stock from Harvard. On September 9, 1991 Phemus received 276 shares of
Common Stock from an escrow account established by the Issuer pursuant to the
Standby Agreement. On March 10, 1992, Aeneas transferred to Phemus all shares of
Common Stock it held. The ownership of Common Stock reflected in this Schedule
13D takes into account the effect of these transactions.
Item 4. Purpose of the Transaction.
Each of Phemus, Harvard and HYI has purchased the shares of Common
Stock it beneficially owns as of the date of this statement for investment
purposes. Phemus entered into the Standby Agreement and the Credit Agreement for
the purpose of assisting HEC, the Issuer and Tejas in consummating the Rights
Offering.
Neither Phemus, Harvard nor HYI has any plans or proposals which relate
to or would result in any of the actions set forth in parts (b) through (j) of
Item 4. Phemus, Harvard and HYI are at this time filing this Amendment No. 1 to
the initial Schedule 13D to report the transfer of all shares previously held by
Aeneas to Phemus. Accordingly, all future filings with respect to transactions
in the Common Stock of Phemus, Harvard or HYI shall be reported by Phemus,
Harvard and HYI. Each of Phemus, Harvard and HYI disclaims any intention to
influence control of management of the Issuer.
Page 82 of 170 Pages
<PAGE>
Item 5. Interest in Securities of the Issuer.
(a), (b). Aeneas is the beneficial owner of no shares of Common Stock
of the Issuer. Phemus is the beneficial owner of 2,937,592 shares of Common
Stock (approximately 36.7% of the shares of Common Stock based upon the most
recent filing of the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Phemus has the right to acquire
beneficial ownership of within 60 days).
Harvard is the beneficial owner of 124,000 shares of the Common Stock
(approximately 1.5% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Harvard has the right to acquire the
beneficial ownership of within 60 days). HYI is the beneficial owner of 62,000
shares of Common Stock (approximately 0.8% of the shares of the Common Stock
based upon the most recently available filing by the Issuer with the Securities
and Exchange Commission and including shares of Common Stock which HYI has the
right to acquire beneficial ownership of within 60 days).
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock to which this statement relates held in its name, and has
sole power to vote and dispose of all of such shares.
To the best of Phemus', Harvard's and HYI's knowledge and belief, none
of the other officers or directors of Phemus, HYI, or The President and Fellows
of Harvard beneficially owns any shares of the Common Stock of the Issuer.
(c). Neither Phemus, Harvard nor HYI has engaged in any transactions in
the Common Stock of the Issuer during the past 60 days. To the best of Phemus',
Harvard's and HYI's knowledge and belief, none of the directors or executive
officers of Phemus, or HYI nor any of the President or Fellows or other
executive officers of Harvard has engaged in any transactions in the Common
Stock of the Issuer during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
Issuer.
Harvard Management Company, Inc. ("HMC") has full discretion to direct
the receipt of dividends from and vote the shares of the Issuer held by Phemus.
HMC is a charitable membership corporation operated for the benefit of Harvard.
Page 83 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: March 24, 1992
AENEAS VENTURE CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Vice President/Treasurer
PHEMUS CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD-YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 84 of 170 Pages
<PAGE>
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210.
I. Directors of Aeneas
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard
Management Company, Inc.
Michael Eisensen Managing Partner, Aeneas
Group, Inc.
Scott Sperling Managing Partner, Aeneas
Group, Inc.
II. Executive Officers of Aeneas (in addition to
those listed above under (I))
Office/Position
Name with Aeneas
---- -----------------
Jack Meyer President
Verne O. Sedlacek Vice President and Treasurer
Michael G. Thonis Vice President
Scott M. Sperling Vice President
Michael R. Eisenson Vice President
Maureen Streeter Secretary
Tami Nason Assistant Secretary
Page 85 of 170 Pages
<PAGE>
III. Trustees of HYI
Present Principal
Name Occupation
---- -----------------
Professor Henry Rosovsky, Professor, Harvard University
Chairman
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the Clarence and
Anne Dillon Dunwalke Trust
Dr. James T. Lavey President, Emory University
Dr. David W. Vikner President, United Board for
Christian Higher Education
in Asia
Dr. Nathan M. Pusey Retired President, Harvard University
Mr. Galen L. Stone Private Investor
Page 86 of 170 Pages
<PAGE>
IV. Executive Officers of HYI (in addition to
those listed under (III))
Office/Position
Name with HYI
---- -----------------
Professor Patrick Hannan Director
Edward J. Baker Assistant Director
Page 87 of 170 Pages
<PAGE>
V. President and Fellows of Harvard and
Other Executive Officers of Harvard
Office/Position
Name with Harvard
---- -----------------
Neil Rudenstine President
Robert Shenton Secretary
D. Ronald Daniel Treasurer
Charles P. Slichter Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Vacancy Fellow
Henry Rosovsky Fellow
Daniel Steiner Vice President and
General Counsel
Sally Zeckhauser Vice President
Fred L. Glimp Vice President of
Alumni Affairs
Robert Scott Vice President of
Financial Affairs
John Shattuck Vice President of
Government, Community
and Public Affairs
Page 88 of 170 Pages
<PAGE>
I. Directors of Phemus
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard Management
Company
Verne O. Sedlacek Treasurer, Harvard Management
Company
Michael R. Eisenson Managing Partner, Aeneas
Group, Inc.
II. Executive Officers of Phemus (in addition to
those listed above under (VI))
Office/Position
Name with Phemus
---- -----------------
Jack R. Meyer President
Verne O. Sedlacek Treasurer
Maureen S. Streeter Clerk/Secretary
Michael R. Eisenson Vice President
Scott M. Sperling Vice President
Michael Thonis Vice President
Tami E. Nason Assistant Clerk
Page 89 of 170 Pages
<PAGE>
UNITED STATES Schedule III
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value,
Series B Convertible Preferred Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 25, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 90 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 91 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value,
Series B Convertible Preferred Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 25, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following bo [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 92 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 2,937,592 Shares of Common Stock |
| BENEFICIALLY | | 13,228 Shares of Series B Convertible Preferred Stock |
| OWNED BY |-------------------------------------------------------------|
| EACH | | |
| REPORTING | 8. | SHARED VOTING POWER |
| PERSON | | |
| WITH | | -- |
| |-------------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 2,937,592 Shares of Common Stock |
| | | 13,228 Shares of Series B Convertible Preferred Stock |
| |-------------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 2,937,592 Shares of Common Stock |
| | 13,228 Shares of Series B Common Preferred Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 35.3% (assuming conversion of the Preferred Stock) |
| | 52.9% of Series B Convertible Preferred Stock |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 93 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value,
Series B Convertible Preferred Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 25, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 94 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 1.3% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 95 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 2)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value,
Series B Convertible Preferred Stock, $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
March 25, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 96 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.6% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 97 of 170 Pages
<PAGE>
SCHEDULE 13D
Amendment No. 2
Items 1, 4 and 5 of the Schedule 13D (Amendment No. 1) as filed on
March 25, 1992 are hereby amended to read in their entirety as follows:
Item 1. Securities and Issuer.
This statement relates to the Common Stock, $0.01 par value (the
"Common Stock") and the Series B Convertible Preferred Stock, $0.01 par value
(the "Preferred Stock"), of E-Z Serve Corporation, a Delaware corporation (the
"Issuer"), which has its principal executive offices at 10700 North Freeway,
Suite 500, Houston, Texas 77037.
Item 4. Purpose of the Transaction.
Each of Phemus, Harvard and HYI has purchased the shares of Common
Stock and Preferred Stock it beneficially owns as of the date of this statement
for investment purposes. Each of Aeneas, Phemus, Harvard and HYI disclaims any
intention to influence control of management.
As part of its overall portfolio management as an institutional
investor, each of Harvard, Aeneas, Phemus and HYI may from time to time
otherwise acquire additional shares of the Issuer and may dispose of shares in
the open market, in private transactions, pursuant to underwritings under
registration rights granted by the Issuer and otherwise, depending upon various
factors including the price level of the Common Stock, conditions in the
securities markets, general economic and industry conditions, and the
availability of other investment opportunities.
Phemus entered into the Standby Agreement and the Credit Agreement for
the purpose of assisting HEC, the Issuer and Tejas in consummating the Rights
Offering. On March 25, 1992, Phemus Corporation purchased for investment
purposes 13,228 shares of Preferred Stock of the Issuer. Also on March 25, 1992,
each of Aeneas, Phemus, Harvard and HYI experienced a decline in percentage
ownership of Common Stock of the Issuer due to the issuance of 1,600,000 shares
of Common Stock to other parties in connection with the Issuer's acquisition of
Taylor Petroleum, Inc.
Neither Phemus, Harvard nor HYI has any plans or proposals which relate
to or would result in any of the actions set forth in parts (b) through (j) of
Item 4.
Item 5. Interest in Securities of the Issuer.
(a), (b). Aeneas is the beneficial owner of no shares of stock of the
Issuer. Phemus is the beneficial owner of 2,937,592 shares of Common Stock and
13,228 shares of Preferred Stock (approximately 35.3% of the shares of Common
Stock and 52.9% of the shares of Preferred Stock based upon the most recent
filing of the Issuer with the Securities and Exchange Commission and including
shares of Common Stock and Preferred Stock which Phemus has the right to acquire
Page 98 of 170 Pages
<PAGE>
beneficial ownership of within 60 days). Harvard is the beneficial owner of
124,000 shares of the Common Stock (approximately 1.3% of the shares of Common
Stock based upon the most recently available filing by the Issuer with the
Securities and Exchange Commission and including shares of Common Stock which
Harvard has the right to acquire the beneficial ownership of within 60 days).
HYI is the beneficial owner of 62,000 shares of Common Stock (approximately 0.6%
of the shares of the Common Stock based upon the most recently available filing
by the Issuer with the Securities and Exchange Commission and including shares
of Common Stock which HYI has the right to acquire beneficial ownership of
within 60 days).
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock and Preferred Stock to which this statement relates held
in its name, and each has sole power to vote and dispose of all of such shares.
To the best of Phemus's, Harvard's and HYI's knowledge and belief, none
of the other officers or directors of Phemus, HYI, or the President or Fellows
of Harvard beneficially owns any shares of the Common Stock or Preferred Stock
of the Issuer.
(c). Neither Phemus, Harvard nor HYI has engaged in any transactions in
the Common Stock or Preferred Stock of the Issuer during the past 60 days. To
the best of Phemus's, Harvard's and HYI's knowledge and belief, none of the
directors or executive officers of Phemus, or HYI nor any of the President or
Fellows or other executive officers of Harvard has engaged in any transactions
in the Common Stock or Preferred Stock of the Issuer during the past 60 days.
(d). None.
(e). Not Applicable.
Page 99 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: July __, 1992
AENEAS VENTURE CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Vice President/Treasurer
PHEMUS CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD-YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 100 of 170 Pages
<PAGE>
Schedule IV
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110-2624
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
July 31, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 101 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 102 of 170 Pages
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
CommonStock, $.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110-2624
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
July 31, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 103 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 6,161,205 Shares of Common Stock on as-converted |
| BENEFICIALLY | | basis--See Item 5 |
| OWNED BY |----------------------------------------------------------|
| EACH | | |
| REPORTING | 8. | SHARED VOTING POWER |
| PERSON | | |
| WITH | | -- |
| |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 6,161,205 Shares of Common Stock on as-converted |
| | | basis--See Item 5 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| 23,067,492 Shares of Common Stock on as-converted basis--See Item 5 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 85% on as-converted basis--See Item 5 |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 104 of 170 Pages
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110-2624
Boston, MA 02210 (617) 951-7410
(617) 523-4400
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
July 31, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 105 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 1.3% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 106 of 170 Pages
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110-2624
Boston, MA 02210 617) 951-7410
(617) 523-4400
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(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
July 31, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 107 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.6% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 108 of 170 Pages
<PAGE>
SCHEDULE 13D
Amendment No. 3
Items 1 through 7 of the Schedule 13 D as filed on September 19, 1991
are hereby amended to read in their entirety as follows:
Item 1. Securities and Issuer.
This statement relates to the Common Stock, $0.01 par value (the
"Common Stock") and the Series B Convertible Preferred Stock, $0.01 par value
(the "Series B Preferred Stock"), the Series D Convertible Preferred Stock,
$0.01 par value (the "Series D Preferred Stock"), and the Series E Convertible
Preferred Stock, $0.01 par value (the "Series E Preferred Stock") (collectively,
the "Preferred Stock"), of E-Z Serve Corporation, a Delaware corporation (the
"Issuer"), which has its principal executive offices at 10700 North Freeway,
Suite 500, Houston, Texas 77037.
Item 2. Identity and Background.
This statement is filed by The President and Fellows of Harvard
College, a Massachusetts educational corporation ("Harvard"), Aeneas Venture
Corporation ("Aeneas"), a Delaware corporation that is a wholly-owned subsidiary
of Harvard and title-holding company for the endowment fund of Harvard
University, Phemus Corporation ("Phemus"), a Massachusetts corporation that is a
subsidiary solely and directly controlled by Harvard and title-holding company
for the endowment fund of Harvard University and the Harvard-Yenching Institute
("HYI"), a Massachusetts nonprofit corporation. The principal executive offices
of Aeneas and Phemus are located at 600 Atlantic Avenue, 26th Floor, Boston,
Massachusetts 02210. The principal executive offices of Harvard are located at
Massachusetts Hall, Cambridge, Massachusetts 02138. The principal executive
offices of HYI are located at 2 Divinity Avenue, Cambridge, Massachusetts 02138.
Aeneas and Phemus are charitable title-holding companies for a portion
of the endowment fund of Harvard University. Harvard is a Massachusetts
educational corporation that administers the endowment fund of Harvard
University. HYI is a Massachusetts nonprofit corporation.
Aeneas's and Phemus's activities are carried on from their offices
located at 600 Atlantic Avenue, Boston, Massachusetts. Harvard's activities are
carried on from its office located at Massachusetts Hall, Cambridge,
Massachusetts.
Phemus entered into a Stockholders Agreement dated July 31, 1992 among
Phemus, Tenacqco Bridge Partnership ("Tenacqco"), Intercontinental Mining &
Resources Incorporated ("IMR"), and Quadrant Capital Corp. ("Quadrant") and the
Issuer pursuant to which Phemus, Tenacqco, IMR and Quadrant had certain
agreements relating to the voting, holding and disposition of shares of Common
Stock and other convertible securities of the Issuer. On June 1, 1994, Phemus
entered into an Amended and Restated Stockholders Agreement among Phemus,
Tenacqco, IMR, Quadrant, DLJ Capital Corporation ("DLJ"), the Issuer, and
certain employees
Page 109 of 170 Pages
<PAGE>
of the Issuer (collectively, the "Holders"). The Amended and Restated
Stockholders Agreement (the "Stockholders Agreement") is referenced as Exhibit C
attached to Amendment No. 7, and Amendment No. 1 to the Stockholders Agreement
is attached as Exhibit ___ hereto. Because of the existence of the Stockholders
Agreement, Phemus may be deemed, pursuant to Rule 13d- 5(b)(1), to be a member
of a "group" whose other members are Tenacqco, IMR and Quadrant. Under Rule
13d-5(b)(1) the group is deemed to have acquired beneficial ownership of all of
the equity securities of the Issuer beneficially owned by the other members of
the group. However, for all other purposes, Phemus disclaims beneficial
ownership of Common Stock or other convertible securities of the Issuer
beneficially owned by Tenacqco, IMR and Quadrant. Information contained herein
relating to Tenacqco, IMR and Quadrant is provided to the best of Phemus's
knowledge. Tenacqco is a New York general partnership formed to hold securities
of TOC Retail, Inc., a Delaware corporation ("TOC"). Tenacqco's principal office
is located at 140 Broadway, New York, New York 10005. Quadrant is a Delaware
corporation formed to operate as a holding company. Quadrant's principal office
is located at 127 East 73rd Street, New York, New York 10021. IMR is a
corporation organized under the laws of the British Virgin Islands and was
formed to operate as a holding company. The address of IMR's principal business
and principal office is CITCO Building, P.O. Box 662, Road Town, Tortola,
British Virgin Islands.
Item 3. Source and Amount of Funds or Other Consideration.
The source of funds used to purchase the securities of the Issuer to
which this Statement relates held by each of Aeneas, Phemus, Harvard and HYI
have been general funds (and income received therefrom) respectively, of Aeneas,
Phemus, Harvard and HYI.
Pursuant to the terms of a Stock Purchase Agreement dated March 30,
1990 and subsequently amended on December 4, 1990 and March 14, 1991 among,
inter alia, the Issuer, Aeneas, Harvard and HYI, Aeneas, Harvard and HYI
received rights to acquire 77,500 shares, 124,000 shares and 31,000 shares
respectively, of Common Stock. All shares issued in this exchange transaction
were issued on or before the closing of the Rights Offering.
As a result of the distribution by the Issuer's parent corporation,
Harken Energy Corporation, a Delaware corporation ("HEC"), to all of HEC's
stockholders on the Reporting Date of rights to purchase shares of common stock
of the Issuer and common stock of Tejas Power Corporation ("Tejas"), Aeneas,
Phemus, Harvard and HYI received rights to acquire 1,081,208 shares, 108,556
shares, 124,000 shares and 31,000 shares respectively, of Common Stock. All
shares issued in the Rights Offering were issued on or before the closing of the
Rights Offering. The exercise price of the rights was $8.00 per unit, each unit
consisting of one share of Common Stock of the Issuer and one share of the Class
A Common Stock of Tejas (a "Unit"). The terms and conditions of the issuance and
exercise of the rights (the "Rights Offering") are more particularly set forth
under the caption "The Rights Offering" in the Registration Statement on Form
S-1 under the Securities Act of 1933 filed by the Issuer and Tejas relating to
the Rights Offering, which Registration Statement is referenced as Exhibit C
attached hereto (the "Registration Statement").
Pursuant to the terms of a Standby Purchase Agreement dated September
18, 1990 and amended on December 6, 1990 and March 14, 1991, among, inter alia,
the Issuer and Phemus,
Page 110 of 170 Pages
<PAGE>
which is referenced as Exhibit D hereto (the "Standby Agreement"), Phemus
received, at the conclusion of the Rights Offering 1,288,953 Units (including
1,288,953 shares of the Issuer's Common Stock and 1,288,953 shares of Class A
Common Stock of Tejas). In addition, Phemus received, at the conclusion of the
Rights Offering 40,382 Units (including 40,382 shares of the Issuer's Common
Stock and 40,382 shares of Class A Common Stock of Tejas) in lieu of a discount
on the purchase price of the Units purchased by it in the Rights Offering. Such
discount was granted to Phemus by the Issuer and Tejas in consideration of
Phemus's commitment under the Standby Agreement to purchase certain shares of
the Issuer and Tejas not purchased by other stockholders of HEC pursuant to the
Rights Offering.
Pursuant to a Credit Agreement dated May 25, 1990 and subsequently
amended on September 28, 1990, October 2, 1990, December 6, 1990 and March 14,
1991, among, inter alia, the Issuer and Phemus, which is referenced as Exhibit E
hereto, Phemus received at the conclusion of the Rights Offering 216,717 shares
of Common Stock as partial payment for original issue discount owed to Phemus by
HEC, the Issuer and Tejas in respect of certain loans made by Phemus to HEC, the
Issuer and Tejas under the Credit Agreement. The price per share for these
shares was $2.175.
On each of May 3, 1991 and June 13, 1991 Phemus acquired 62,000 shares
of Common Stock from Harvard. The ownership of Common Stock reflected in this
Schedule 13D takes into account the effect of these transactions.
Pursuant to a Warrant Purchase Agreement dated July 15, 1992 among
Phemus, IMR, Intercontinental Mining & Resources, Limited and the Issuer (the
"Warrant Purchase Agreement"), Phemus received warrants (the "July Warrants") to
purchase 160,818 shares of Common Stock of the Issuer in consideration of
Phemus's agreement to extend guarantees of the repayment obligations of E-Z
Serve Petroleum Marketing Company ("EZPET"), a wholly-owned subsidiary of the
Issuer, under certain letters of credit issued by The First National Bank of
Boston. The exercise price of the warrants is $1.90 per share of Common Stock
for which the warrants are exercised, subject to adjustment from time to time. A
copy of the Warrant Purchase Agreement and the form of the July Warrants are
referenced as Exhibit G attached hereto.
Pursuant to a Restructuring Agreement dated July 18, 1992 among Phemus,
DLJ Bridge Finance, L.P. ("DLJ"), IMR, Bankers Trust Company and the Issuer, as
amended on July 31, 1992 to transfer the rights and obligations of DLJ to
Tenacqco (the "Restructuring Agreement"), Phemus acquired 1,587 shares of TOC
Series B Preferred Stock, together with 1,587 warrants (the "Warrants") issued
by the Issuer permitting the exchange of each share of the TOC Series B
Preferred Stock at any time at the option of the holder for ten shares of the
Series D Preferred Stock of the Issuer. The aggregate consideration paid by
Phemus for the TOC Series B Preferred Stock and the Warrants was $1,587,000
advanced to Bankers Trust Company pursuant to the terms of the Restructuring
Agreement. A copy of the Restructuring Agreement and the form of the Warrants
are referenced as Exhibit H attached hereto.
Pursuant to an Option Agreement dated July 18, 1992, among Phemus, DLJ
and IMR, as amended on July 31, 1992 to transfer the rights and obligations of
DLJ to Tenacqco (the "Option Agreement"), Phemus acquired in consideration for
the payment of $1, options to purchase from
Page 111 of 170 Pages
<PAGE>
Tenacqco 231,772 shares of Common Stock and 129,955 shares of Series E Preferred
Stock of the Issuer at an exercise price of $1. Under the Option Agreement,
Tenacqco has the option to require Phemus to purchase such shares form Tenacqco
at an exercise price of $1. All such options expire if not exercised on or prior
to December 31, 1992. A copy of the Option Agreement is referenced as Exhibit I
attached hereto.
The foregoing summaries of certain agreements and instruments relating
to the transactions described herein are qualified in their entirety by
reference to the complete texts thereof, set forth in applicable exhibits
hereto.
Item 4. Purpose of the Transaction.
Each of Phemus, Harvard and HYI has purchased the shares of Common
Stock and Preferred Stock it beneficially owns as of the date of this statement
for investment purposes. Each of Phemus, Harvard and HYI disclaims any intention
to influence control of management.
As part of its overall portfolio management as an institutional
investor, each of Harvard, Aeneas, Phemus and HYI may from time to time
otherwise acquire additional shares of the Issuer and may dispose of shares in
the open market, in private transactions, pursuant to underwritings under
registration rights granted by the Issuer and otherwise, depending upon various
factors including the price level of the Common Stock, conditions in the
securities markets, general economic and industry conditions, and the
availability of other investment opportunities.
Phemus entered into the Standby Agreement and the Credit Agreement for
the purpose of assisting HEC, the Issuer and Tejas in consummating the Rights
Offering.
On March 25, 1992, Phemus Corporation purchased for investment purposes
13,228 shares of Series B Preferred Stock of the Issuer. Also on March 25, 1992,
each of Phemus, Harvard and HYI experienced a decline in percentage ownership of
Common Stock of the Issuer due to the issuance of 1,600,000 shares of Common
Stock to other parties in connection with the Issuer's acquisition of Taylor
Petroleum, Inc.
Phemus entered into the Warrant Purchase Agreement for the purpose of
assisting EZPET, a wholly-owned subsidiary of the Issuer, in obtaining certain
letters of credit issued by The First National Bank of Boston.
Phemus entered into the Restructuring Agreement and the Option
Agreement for the purpose of facilitating the acquisition of TOC by the Issuer.
Neither Phemus, Harvard nor HYI has any plans or proposals which relate
to or would result in any of the actions set forth in parts (b) through (j) of
Item 4.
Item 5. Interest in Securities of the Issuer.
(a), (b). Aeneas is the beneficial owner of no shares of stock of the
Issuer.
Page 112 of 170 Pages
<PAGE>
Harvard is the beneficial owner of 124,000 shares of Common Stock
(approximately 1.3% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Harvard has the right to acquire the
beneficial ownership of within 60 days).
HYI is the beneficial owner of 62,000 shares of Common Stock
(approximately 0.6% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which HYI has the right to acquire beneficial
ownership of within 60 days).
Phemus is the beneficial owner of 2,937,592 shares of Common Stock and,
solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to be the
beneficial owner of an additional 3,223,613 shares of Common Stock for a total
beneficial ownership of 6,161,205 shares of Common Stock (approximately 41.8% of
the shares of Common Stock based on the most recent filing of the Issuer with
the Securities and Exchange Commission and including shares of stocks of the
Issuer which Phemus has the right to acquire beneficial ownership of within 60
days). Such number of shares of Common Stock and percentage ownership assumes
full conversion of Phemus's 13,228 shares of Series B Preferred Stock, the
exercise of the July Warrants, the exercise of the Warrants received pursuant to
the Restructuring Agreement and full conversion of all of Phemus's shares of
Series D Preferred Stock acquired upon such exercise, and the exercise of
Phemus's options pursuant to the Option Agreement (the "Phemus Option") to
purchase Common Stock and Series E Preferred Stock, and full conversion of all
such Series E Preferred Stock (all such exercises and conversions being referred
to collectively as the "Phemus Full Exercise"). Of the Common Stock Phemus may
be deemed to own beneficially, (i) 696,210 shares (representing approximately
4.7% of the Common Stock outstanding assuming Phemus Full Exercise) may be
issued upon conversion of 13,228 shares of the Series B Preferred Stock, (ii)
160,818 shares may be issued upon exercise of the July Warrants (representing
approximately 1.0% of the Common Stock outstanding assuming Phemus Full
Exercise), (iii) 835,263 shares (representing approximately 5.7% of the Common
Stock outstanding assuming Phemus Full Exercise) may be issued following the
exercise of the 1,587 Warrants (which accompany the 1,587 shares of TOC Series B
Preferred Stock owned by Phemus) to purchase 15,870 shares of Series D Preferred
Stock and conversion of such Series D Preferred Stock into Common Stock, and
(iv) 231,772 shares (representing approximately 1.6% of the Common Stock
outstanding assuming Phemus Full Exercise) and 1,299,550 shares (representing
approximately 8.8% of the Common Stock outstanding assuming Phemus Full
Exercise) may be issued upon the exercise of the Phemus Option, permitting the
acquisition from Tenacqco of 231,772 shares of the Common Stock of the Issuer
and 129,955 shares of Series E Preferred Stock convertible into 1,299,550 shares
of Common Stock of the Issuer. The foregoing amounts and percentages do not
include the shares of Common Stock of the Issuer beneficially owned by Harvard
and 62,000 shares of Common Stock of the Issuer beneficially owned by HYI, nor
do they give effect to (i) conversion of Series E Preferred Stock owned by
Tenacqco, (ii) conversion of Series D Preferred Stock that may be acquired by
Tenacqco and IMR or (iii) the exercise of options, warrants and conversion
rights held by other holders of the Issuer's securities.
Tenacqco owns or has the right to acquire and, solely for the purpose
of Rule 13d- 3(d)(1)(i), may be deemed to beneficially own 14,213,174 shares of
Common Stock, representing
Page 113 of 170 Pages
<PAGE>
approximately 60% of the outstanding shares of Common Stock (assuming full
conversion of all of Tenacqco's shares of Series E Preferred Stock and Series D
Preferred Stock ("Tenacqco Full Exercise")). Of the Common Stock Tenacqco may be
deemed to own beneficially, 10,721,990 shares (representing approximately 45% of
the Common Stock assuming Tenacqco Full Exercise) may be issued upon conversion
of 1,072,199 shares of Series E Preferred Stock and 1,578,947 shares
(representing approximately 7% of the Common Shares assuming Tenacqco Full
Exercise) may be issued following the exercise of the 3,000 Warrants (which
accompany the 3,000 shares of TOC Series B Preferred Stock) to purchase 30,000
shares of Series D Preferred Stock of the Issuer and conversion of such Series D
Preferred Stock into Common Stock. The foregoing amounts and percentages do not
give effect to (i) exercise of rights under the Option Agreement that would
reduce the beneficial ownership of Common Stock by Tenacqco, (ii) conversion of
Series D Preferred Stock that may be acquired by Phemus and IMR or (iii) the
exercise of options, warrants and conversion rights held by other holders of the
Issuer's securities.
IMR and Quadrant, which, for purposes of this Item 5 will be referred
to jointly as "IMR," unless otherwise indicated, in the aggregate own or have
the right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i), may be
deemed to own beneficially 5,587,865 shares of Common Stock, representing
approximately 39% of the outstanding Common Stock (assuming full conversion of
all of IMR's shares of Series B Preferred Stock and Series D Preferred Stock,
the exercise of such July Warrants as are held by IMR and the exercise of IMR's
option pursuant to the Option Agreement (the "IMR Option") to purchase Common
Stock and Series E Preferred Stock, and the full conversion of all such Series E
Preferred Stock, all such exercises and conversions being referred to
collectively as the "IMR Full Exercise"). Of the Common Stock IMR may be deemed
to own beneficially, (i) 619,578 shares (representing approximately 4% of the
Common Stock outstanding assuming IMR Full Exercise) may be issued upon
conversion of 11,772 shares of Series B Preferred Stock, (ii) 143,129 shares
(representing approximately 1% of the Common Stock outstanding assuming IMR Full
Exercise) may be issued upon exercise of the July Warrants, (iii) 743,684 shares
(representing approximately 5% of the Common Stock outstanding assuming IMR Full
Exercise) may be issued upon the exercise of 1,413 Warrants (which accompany the
1,413 shares of TOC Series B Preferred Stock owned by IMR) to purchase 14,130
shares of Series D Preferred Stock of the Issuer and conversion of such Series D
Preferred Stock into Common Stock and (iv) 206,360 shares (representing
approximately 1% of the Common Stock outstanding assuming IMR Full Exercise) and
1,157,070 shares (representing approximately 8% of the Common Stock outstanding
assuming IMR Full Exercise) may be issued upon the exercise of the IMR Option,
permitting the acquisition from Tenacqco of 206,360 shares of the Issuer's
Common Stock and 115,707 shares of Series E Preferred Stock convertible into
1,157,070 shares of Common Stock of the Issuer. The foregoing amounts and
percentages do not give effect to (i) conversion of Series E Preferred Stock
owned by Tenacqco, (ii) conversion of Series D Preferred Stock that may be
acquired by Phemus and Tenacqco or (iii) the exercise of options, warrants and
conversion rights held by other holders of the Issuer's securities.
The aggregate number of shares of Common Stock beneficially owned by
Phemus, Tenacqco, IMR, and Quadrant as a "group", for purposes of Rule 13d-5, is
23,067,492, representing approximately 85% of the outstanding Common Stock
(assuming the full exercise of Phemus's, Tenacqco's, IMR's and Quadrant's
warrants and options and full conversion of
Page 114 of 170 Pages
<PAGE>
Phemus's, Tenacqco's, IMR's and Quadrant's shares of Preferred Stock of the
Issuer, all such exercises and conversions being referred to collectively as the
"Maximum Group Exercise").
Pursuant to Rule 13d-5(b)(1), to the extent a "group" is deemed to
exist by virtue of the Stockholders Agreement, such group would be deemed to
have beneficial ownership of all equity securities of the Issuer beneficially
owned by the other parties to the Stockholders Agreement. On that basis, such
group would be deemed to beneficially own an aggregate of 23,067,492 shares of
Common Stock, assuming Maximum Group Exercise, representing approximately 85% of
the outstanding Common Stock of the Issuer, and would be deemed to have the
power to vote or to direct the vote and the power to dispose or to direct the
disposition of 23,067,492 shares of Common Stock assuming Maximum Group
Exercise.
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock and Preferred Stock to which this statement relates held
in its name, and each has sole power to vote and dispose of all of such shares.
As described more fully in Item 6 herein, Phemus, Quadrant and IMR each executed
a New Proxy (as defined in Item 6) giving Tenacqco the right to vote all the
voting shares owned by Quadrant, Phemus and IMR solely for the purpose of
approving the issuance of certain shares of Common Stock of the Issuer. By
reason of its ownership and ability to acquire Common Stock, Phemus may be
deemed to have the sole power to vote or to direct the vote, and to dispose or
direct the disposition of 6,161,205 shares of Common Stock. By reason of its
ownership and ability to acquire Common Stock, IMR and Quadrant may be deemed in
the aggregate to have the sole power to vote or to direct the vote, and to
dispose or direct the disposition of 5,587,865 shares of Common Stock. By reason
of their ownership and ability to acquire Common Stock, Tenacqco may be deemed
to have the sole power to vote or to direct the vote, and to dispose or direct
the disposition of 14,213,174 shares of Common Stock.
To the best of Phemus's, Harvard's and HYI's knowledge and belief, none
of the other officers or directors of Phemus, HYI, or the President or Fellows
of Harvard beneficially owns any shares of the Common Stock or Preferred Stock
of the Issuer.
(c). Other than the transactions described above, neither Phemus,
Harvard nor HYI has engaged in any transactions in the Common Stock or Preferred
Stock of the Issuer during the past 60 days. To the best of Phemus's, Harvard's
and HYI's knowledge and belief, none of the directors or executive officers of
Phemus, or HYI nor any of the President or Fellows or other executive officers
of Harvard has engaged in any transactions in the Common Stock or Preferred
Stock of the Issuer during the past 60 days.
(d). None.
(e). Not Applicable.
Page 115 of 170 Pages
<PAGE>
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of
Issuer.
Pursuant to a proxy dated July 31, 1992 executed by Phemus in favor of
Tenacqco (the "New Proxy"), Tenacqco has the right to vote or otherwise act with
respect to all shares of voting stock of the Issuer owned by Phemus, solely to
approve the issuance of Common Stock of the Issuer as contemplated by a certain
Stock Purchase Agreement dated as of July 18, 1992, amended as of July 21, 1992
and amended and restated as of July 31, 1992, between the Issuer and Tenacqco.
Such New Proxy replaces a prior proxy (the "Proxy") executed by Phemus in favor
of DLJ Bridge Finance, L.P. covering the same number of voting shares and
identical in form and purpose to the New Proxy. Copies of the Proxy and the New
Proxy are referenced as Exhibit J attached hereto.
Except as provided in the New Proxy described in this Item 6, and in
the Stockholders Agreement described in Item 2 above, Harvard Management
Company, Inc. ("HMC") has full discretion to direct the receipt of dividends
from and vote the shares of the Issuer held by Phemus. HMC is a charitable
membership corporation operated for the benefit of Harvard.
Item 7. Material to be Filed as Exhibits.
Exhibit A: Information concerning Reporting Persons.
Exhibit B: Information concerning Reporting Persons' officers,
directors and others.
Exhibit C: Registration Statement (Registration No. 33-37141) on Form
S-1 under the Securities Act of 1933 dated March 22, 1991 (the
"Registration Statement") filed by E-Z Serve Corporation and Tejas
Power Corporation with the Securities and Exchange Commission (all
information set forth under the captions "The Rights Offering" and
"Related Exchange Transactions") (incorporated by reference to such
filing).
Exhibit D: Standby Purchase Agreement dated September 18, 1990 and
subsequently amended, among, inter alia, E-Z Serve Corporation and
Phemus Corporation (incorporated by reference to Exhibit 10.2 to the
Registration Statement).
Exhibit E: Credit Agreement dated May 25, 1990 and subsequently
amended, among, inter alia, E-Z Serve Corporation and Phemus
Corporation (incorporated by reference to Exhibit 10.1 to the
Registration Statement).
Exhibit F: Stockholders Agreement dated July 31, 1992 among, inter
alia, E-Z Serve Corporation and Phemus Corporation.
Exhibit G: Warrant Purchase Agreement dated July 15, 1992 among, inter
alia, E-Z Serve Corporation and Phemus Corporation, and form of
Warrant.
Page 116 of 170 Pages
<PAGE>
Exhibit H: Restructuring Agreement dated July 18, 1992 and subsequently
amended, among, inter alia, E-Z Serve Corporation and Phemus
Corporation, and form of Warrant.
Exhibit I: Option Agreement dated July 18, 1992 and subsequently
amended, among Phemus Corporation, DLJ Bridge Finance, L.P. and
Intercontinental Mining & Resources Incorporated.
Exhibit J: New Proxy dated July 31, 1992 executed by Phemus Corporation
in favor of Tenacqco Bridge Partnership replacing Proxy dated July 18,
1992 executed by Phemus Corporation in favor of DLJ Bridge Finance,
L.P.
Page 117 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: August __, 1992
AENEAS VENTURE CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Vice President/Treasurer
PHEMUS CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD-YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 118 of 170 Pages
<PAGE>
Schedule V
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
CommonStock, $.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 9, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 119 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 120 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
CommonStock, $.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 9, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 121 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 6,161,205 Shares of Common Stock on as-converted |
| BENEFICIALLY | | basis--See Item 5 |
| OWNED BY |----------------------------------------------------------|
| EACH | | |
| REPORTING | 8. | SHARED VOTING POWER |
| PERSON | | |
| WITH | | -- |
| |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 6,161,205 Shares of Common Stock on as-converted |
| | | basis--See Item 5 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| 23,067,492 Shares of Common Stock on as-converted basis--See Item 5 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 85% on as-converted basis--See Item 5 |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 122 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02210 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 9, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 123 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 1.3% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 124 of 170 Pages
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 4)*
E-Z SERVE CORPORATION
----------------------------------------------------------------
(Name of Issuer)
Common Stock, $0.01 par value, Series B, Series D
and Series E Convertible Preferred Stock,
all $0.01 par value
----------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Ropes & Gray
Company, Inc. One International Place
600 Atlantic Avenue Boston, MA 02110
Boston, MA 02110 (617) 951-7410
(617) 523-4400
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
September 9, 1992
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 125 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- -----------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 Shares of Common Stock |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 Shares of Common Stock |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 Shares of Common Stock |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.6% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 126 of 170 Pages
<PAGE>
SCHEDULE 13D
Amendment No. 4
Items 3, 4, and 5 of the Schedule 13D as filed on September 19, 1991
are hereby amended to read in their entirety as follows:
Item 3. Source and Amount of Funds or Other Consideration.
The source of funds used to purchase the securities of the Issuer to
which this Statement relates held by each of Aeneas, Phemus, Harvard and HYI
have been general funds (and income received therefrom) respectively, of Aeneas,
Phemus, Harvard and HYI.
Pursuant to the terms of a Stock Purchase Agreement dated March 30,
1990 and subsequently amended on December 4, 1990 and March 14, 1991 among,
inter alia, the Issuer, Aeneas, Harvard and HYI, Aeneas, Harvard and HYI
received rights to acquire 77,500 shares, 124,000 shares and 31,000 shares
respectively, of Common Stock. All shares issued in this exchange transaction
were issued on or before the closing of the Rights Offering.
As a result of the distribution by the Issuer's parent corporation,
Harken Energy Corporation, a Delaware corporation ("HEC"), to all of HEC's
stockholders on the Reporting Date of rights to purchase shares of common stock
of the Issuer and common stock of Tejas Power Corporation ("Tejas"), Aeneas,
Phemus, Harvard and HYI received rights to acquire 1,081,208 shares, 108,556
shares, 124,000 shares and 31,000 shares respectively, of Common Stock. All
shares issued in the Rights Offering were issued on or before the closing of the
Rights Offering. The exercise price of the rights was $8.00 per unit, each unit
consisting of one share of Common Stock of the Issuer and one share of the Class
A Common Stock of Tejas (a "Unit"). The terms and conditions of the issuance and
exercise of the rights (the "Rights Offering") are more particularly set forth
under the caption "The Rights Offering" in the Registration Statement on Form
S-1 under the Securities Act of 1933 filed by the Issuer and Tejas relating to
the Rights Offering, which Registration Statement is referenced as Exhibit C
attached hereto (the "Registration Statement").
Pursuant to the terms of a Standby Purchase Agreement dated September
18, 1990 and amended on December 6, 1990 and March 14, 1991, among, inter alia,
the Issuer and Phemus, which is referenced as Exhibit D hereto (the "Standby
Agreement"), Phemus received, at the conclusion of the Rights Offering 1,288,953
Units (including 1,288,953 shares of the Issuer's Common Stock and 1,288,953
shares of Class A Common Stock of Tejas). In addition, Phemus received, at the
conclusion of the Rights Offering 40,382 Units (including 40,382 shares of the
Issuer's Common Stock and 40,382 shares of Class A Common Stock of Tejas) in
lieu of a discount on the purchase price of the Units purchased by it in the
Rights Offering. Such discount was granted to Phemus by the Issuer and Tejas in
consideration of Phemus's commitment under the Standby Agreement to purchase
certain shares of the Issuer and Tejas not purchased by other stockholders of
HEC pursuant to the Rights Offering.
Page 127 of 170 Pages
<PAGE>
Pursuant to a Credit Agreement dated May 25, 1990 and subsequently
amended on September 28, 1990, October 2, 1990, December 6, 1990 and March 14,
1991, among, inter alia, the Issuer and Phemus, which is referenced as Exhibit E
hereto, Phemus received at the conclusion of the Rights Offering 216,717 shares
of Common Stock as partial payment for original issue discount owed to Phemus by
HEC, the Issuer and Tejas in respect of certain loans made by Phemus to HEC, the
Issuer and Tejas under the Credit Agreement. The price per share for these
shares was $2.175.
On each of May 3, 1991 and June 13, 1991 Phemus acquired 62,000 shares
of Common Stock from Harvard. The ownership of Common Stock reflected in this
Schedule 13D takes into account the effect of these transactions.
Pursuant to a Warrant Purchase Agreement dated July 15, 1992 among
Phemus, IMR, Intercontinental Mining & Resources, Limited and the Issuer (the
"Warrant Purchase Agreement"), Phemus received warrants (the "July Warrants") to
purchase 160,818 shares of Common Stock of the Issuer in consideration of
Phemus's agreement to extend guarantees of the repayment obligations of E-Z
Serve Petroleum Marketing Company ("EZPET"), a wholly-owned subsidiary of the
Issuer, under certain letters of credit issued by The First National Bank of
Boston. The exercise price of the warrant is $1.90 per share of Common Stock for
which the warrants are exercised, subject to adjustment from time to time. A
copy of the Warrant Purchase Agreement and the form of the July Warrants are
referenced as Exhibit G attached hereto.
Pursuant to a Restructuring Agreement dated July 18, 1992 among Phemus,
DLJ Bridge Finance, L.P. ("DLJ") IMR, Bankers Trust Company and the Issuer, as
amended on July 31, 1992 to transfer the rights and obligations of DLJ to
Tenacqco (the "Restructuring Agreement"), Phemus acquired 1,587 shares of TOC
Series B Preferred Stock, together with 1,587 warrants (the "Warrants") issued
by the Issuer permitting the exchange of each share of the TOC Series B
Preferred Stock at any time at the option of the holder for ten shares of the
Series D Preferred Stock of the Issuer. The aggregate consideration paid by
Phemus for the TOC Series B Preferred Stock and the Warrants was $1,587,000
advanced to Bankers Trust Company pursuant to the terms of the Restructuring
Agreement. A copy of the Restructuring Agreement and the form of the Warrants
are referenced as Exhibit H attached hereto.
Pursuant to an Option Agreement dated July 18, 1992, among Phemus, DLJ
and IMR, as amended on July 31, 1992 to transfer the rights and obligations of
DLJ to Tenacqco, (the "Option Agreement"), Phemus acquired in consideration for
the payment of $1, options to purchase from Tenacqco 231,772 shares of Common
Stock and 129,955 shares of Series E Preferred Stock of the Issuer at an
exercise price of $1. A copy of the Option Agreement is referenced as Exhibit I
attached hereto. On September 9, 1992, Phemus delivered an exercise notice under
the Option Agreement pursuant to which Tenacqco has arranged for the transfer to
Phemus of 231,772 shares of Common Stock and 129,955 shares of Series E
Preferred Stock of the Issuer.
The foregoing summaries of certain agreements and instruments relating
to the transactions described herein are qualified in their entirety by
reference to the complete texts thereof, set forth in applicable exhibits
hereto.
Page 128 of 170 Pages
<PAGE>
Item 4. Purpose of the Transaction.
Each of Phemus, Harvard and HYI has purchased the shares of Common
Stock and Preferred Stock it beneficially owns as of the date of this statement
for investment purposes. Each of Phemus, Harvard and HYI disclaims any intention
to influence control of management.
As part of its overall portfolio management as an institutional
investor, each of Harvard, Aeneas, Phemus and HYI may from time to time
otherwise acquire additional shares of the Issuer and may dispose of shares in
the open market, in private transactions, pursuant to underwritings under
registration rights granted by the Issuer and otherwise, depending upon various
factors including the price level of the Common Stock, conditions in the
securities markets, general economic and industry conditions, and the
availability of other investment opportunities.
Phemus entered into the Standby Agreement and the Credit Agreement for
the purpose of assisting HEC, the Issuer and Tejas in consummating the Rights
Offering.
On March 25, 1992, Phemus purchased for investment purposes 13,228
shares of Series B Preferred Stock of the Issuer. Also on March 25, 1992, each
of Phemus, Harvard and HYI experienced a decline in percentage ownership of
Common Stock of the Issuer due to the issuance of 1,600,000 shares of Common
Stock to other parties in connection with the Issuer's acquisition of Taylor
Petroleum, Inc.
Phemus entered into the Warrant Purchase Agreement for the purpose of
assisting EZPET, a wholly-owned subsidiary of the Issuer, in obtaining certain
letters of credit issued by The First National Bank of Boston.
Phemus entered into the Restructuring Agreement and the Option
Agreement for the purpose of facilitating the acquisition of TOC by the Issuer.
Phemus exercised its option under the Option Agreement to purchase from
Tenacqco 231,722 shares of Common Stock and 129,955 shares of Series E Preferred
Stock of the Issuer for investment purposes.
Neither Phemus, Harvard nor HYI has any plans or proposals which relate
to or would result in any of the actions set forth in parts (b) through (j) of
Item 4.
Item 5. Interest in Securities of the Issuer.
(a), (b). Aeneas is the beneficial owner of no shares of stock of the
Issuer.
Harvard is the beneficial owner of 124,000 shares of Common Stock
(approximately 1.3% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Harvard has the right to acquire the
beneficial ownership of within 60 days).
Page 129 of 170 Pages
<PAGE>
HYI is the beneficial owner of 62,000 shares of Common Stock
(approximately 0.6% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which HYI has the right to acquire beneficial
ownership of within 60 days).
Phemus is the beneficial owner of 3,169,314 shares of Common Stock and,
solely for the purpose of Rule 13d-3(d) (1) (i), may be deemed to be the
beneficial owner of an additional 2,991,891 shares of Common Stock for a total
beneficial ownership of 6,161,205 shares of Common Stock (approximately 42.5% of
the shares of Common Stock based on the most recent filing of the Issuer with
the Securities and Exchange Commission and including shares of stocks of the
Issuer which Phemus has the right to acquire beneficial ownership within 60
days). Such number of shares of Common Stock and percentage ownership assumes
full conversion of Phemus's 13,228 shares of Series B Preferred Stock, the
exercise of the July Warrants, the exercise of the Warrants received pursuant to
the Restructuring Agreement and full conversion of all of Phemus's shares of
Series D Preferred Stock acquired upon such exercise (all such exercises and
conversions being referred to collectively as the "Phemus Full Exercise"). Of
the Common Stock Phemus may be deemed to own beneficially, (i) 696,210 shares
(representing approximately 4.8% of the Common Stock outstanding assuming Phemus
Full Exercise) may be issued upon conversion of 13,228 shares of the Series B
Preferred Stock, (ii) 160,818 shares may be issued upon exercise of the July
Warrants (representing approximately 1.1% of the Common Stock outstanding
assuming Phemus Full Exercise), (iii) 835,263 shares (representing approximately
5.8% of the Common Stock outstanding assuming Phemus Full Exercise) may be
issued following the exercise of the 1,587 Warrants (which accompany the 1,587
shares of TOC Series B Preferred Stock owned by Phemus) to purchase 15,870
shares of Series D Preferred Stock and conversion of such Series D Preferred
Stock into Common Stock, and (iv) 1,299,550 shares (representing approximately
8.9% of the Common Stock outstanding assuming Phemus Full Exercise) may be
issued upon conversion of shares of the Series E Preferred Stock of the Issuer.
The foregoing amounts and percentages do not include the 124,000 shares of
Common Stock of the Issuer beneficially owned by Harvard and 62,000 shares of
Common Stock of the Issuer beneficially owned by HYI, nor do they give effect to
the exercise of any options, warrants and conversion rights held by other
holders of the Issuer's securities.
Tenacqco owns or has the right to acquire and, solely for the purpose
of Rule 13d-3(d) (1) (i), may be deemed to beneficially own 11,318,422 shares of
Common Stock, representing approximately 53% of the outstanding shares of Common
Stock (assuming full conversion of all of Tenacqco's shares of Series E
Preferred Stock and Series D Preferred Stock ("Tenacqco Full Exercise")). Of the
Common Stock Tenacqco may be deemed to own beneficially, 8,265,370 shares
(representing approximately 38.7% of the Common Stock assuming Tenacqco Full
Exercise) may be issued upon conversion of 826,537 shares of Series E Preferred
Stock and 1,578,947 shares (representing approximately 7.4% of the Common Shares
assuming Tenacqco Full Exercise) may be issued following the exercise of the
3,000 Warrants (which accompany the 3,000 shares of TOC Series B Preferred
Stock) to purchase 30,000 shares of Series D Preferred Stock of the Issuer and
conversion of such Series D Preferred Stock into Common Stock. The foregoing
amounts and percentages do not give effect to the exercise of any options,
warrants and conversion rights held by other holders of the Issuer's securities.
Page 130 of 170 Pages
<PAGE>
IMR and Quadrant which, for purposes of this Item 5 will be referred to
jointly as "IMR," unless otherwise indicated, in the aggregate own or have the
right to acquire and, solely for the purpose of Rule 13d-3(d) (1) (i), may be
deemed to own beneficially 5,587,865 shares of Common Stock, representing
approximately 39.4% of the outstanding Common Stock (assuming full conversion of
all of IMR's shares of Series B Preferred Stock and Series D Preferred Stock,
the exercise of such July Warrants as are held by IMR, and the full conversion
of all of IMR's shares of Series E Preferred Stock, all such exercises and
conversions being referred to collectively as the "IMR Full Exercise"). Of the
Common Stock IMR may be deemed to own beneficially, (i) 619,578 shares
(representing approximately 4.4% of the Common Stock outstanding assuming IMR
Full Exercise) may be issued upon conversion of 11,772 shares of Series B
Preferred Stock, (ii) 143,129 shares (representing approximately 1% of the
Common Stock outstanding assuming IMR Full Exercise) may be issued upon exercise
of the July Warrants, (iii) 743,684 shares (representing approximately 5.2% of
the Common Stock outstanding assuming IMR Full Exercise) may be issued upon the
exercise of 1,413 Warrants (which accompany the 1,413 shares of TOC Series B
Preferred Stock owned by IMR) to purchase 14,130 shares of Series D Preferred
Stock of the Issuer and conversion of such Series D Preferred Stock into Common
Stock and (iv) 1,157,070 shares (representing approximately 8.2% of the Common
Stock outstanding assuming IMR Full Exercise) may be issued upon the Conversion
of the Series E Preferred Stock. The foregoing amounts and percentages do not
give effect to the exercise of any options, warrants and conversion rights held
by other holders of the Issuer's securities.
The aggregate number of shares of Common Stock beneficially owned by
Phemus, Tenacqco, IMR, and Quadrant as a "group", for purposes of Rule 13d-5, is
23,067,492, representing approximately 85% of the outstanding Common Stock
(assuming the full exercise of Phemus's, Tenacqco's, IMR's and Quadrant's
warrants and options and full conversion of Phemus's, Tenacqco's, IMR's and
Quadrant's shares of Preferred Stock of the Issuer, all such exercises and
conversions being referred to collectively as the "Maximum Group Exercise").
Pursuant to Rule 13d-5(b) (1), to the extent a "group" is deemed to
exist by virtue of the Stockholders Agreement, such group would be deemed to
have beneficial ownership of all equity securities of the Issuer beneficially
owned by hte other parties to the Stockholders Agreement. On that basis, such
group would be deemed to beneficially own an aggregate of 23,067,492 shares of
Common Stock, assuming Maximum Group Exercise, representing approximately 85% of
the outstanding Common Stock of the Issuer, and would be deemed to have the
power to vote or to direct the vote and the power to dispose or to direct the
disposition of 23,067,492 shares of Common Stock assuming Maximum Group
Exercise.
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock and Preferred Stock to which this statement relates held
in its name, and each has sole power to vote and dispose of all of such shares.
As described more fully in Item 6 herein, Phemus, Quadrant and IMR each executed
a New Proxy (as defined in Item 6) giving Tenacqco the right to vote all the
voting shares owned by Quadrant, Phemus and IMR solely for the purpose of
approving the issuance of certain shares of Common Stock of the Issuer. By
reason of its ownership and ability to acquire Common Stock, Phemus may be
deemed to have the sole power to vote or to direct the vote, and to dispose or
direct the disposition of 6,161,205 shares of Common Stock. By reason of its
ownership and ability to acquire Common Stock, IMR and
Page 131 of 170 Pages
<PAGE>
Quadrant may be deemed in the aggregate to have the sole power to vote or to
direct the vote, and to dispose or direct the disposition of 5,587,865 shares of
Common Stock. By reason of their ownership and ability to acquire Common Stock,
Tenacqco may be deemed to have the sole power to vote or to direct the vote, and
to dispose or direct the disposition of 11,318,422 shares of Common Stock.
To the best of Phemus's, Harvard's and HYI's knowledge and belief, none
of the other officers or directors of Phemus, HYI or the President or Follows of
Harvard beneficially owns any shares of the Common Stock or Preferred Stock of
the Issuer.
(c). Other than the transactions described above, neither Phemus,
Harvard nor HYI has engaged in any transactions in the Common Stock or Preferred
Stock of the Issuer during the past 60 days. To the best of Phemus's, Harvard's
and HYI's knowledge and belief, none of the directors or executive officers of
Phemus, or HYI nor any of the President or Fellows or other executive officers
of Harvard has engaged in any transactions in the Common Stock or Preferred
Stock of the Issuer during the past 60 days.
(d). None.
(e). Not applicable.
Page 132 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: _______________
AENEAS VENTURE CORPORATION
By:_______________________________
Name:
Title:
PHEMUS CORPORATION
By:_______________________________
Name:
Title:
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By:_______________________________
Name:
Title:
HARVARD-YENCHING INSTITUTE
By:_______________________________
Name:
Title:
Page 133 of 170 Pages
<PAGE>
Schedule VII
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
E-Z Serve Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
269-329-108
- --------------------------------------------------------------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Company, Inc. Ropes & Gray
600 Atlantic Avenue One International Place
Boston, MA 02210 Boston, MA 02110
(617) 523-4400 (617) 951-7410
- --------------------------------------------------------------------------------
Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 21, 1993
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 134 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 135 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 16,514,547 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 16,514,547 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 16,514,547 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 24.37% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 136 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.02% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 137 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard-Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.01% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 138 of 170 Pages
<PAGE>
SCHEDULE 13D
E-Z Serve Corporation
Amendment No. 5
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is amended by adding thereto the following:
Pursuant to a Series F Subscription Agreement dated April 21, 1993
among Phemus, DLJ Capital Corp. ("DLJ"), Intercontinental Mining & Resources
Incorporated ("IMR") and the Issuer, Phemus purchased 105,820 shares of the
Issuer's Series F Preferred Stock for an aggregate purchase price of $1,587,300.
Pursuant to a Warrant Subscription Agreement dated April 21, 1993 (the "Warrant
Subscription Agreement") among Phemus, IMR and the Issuer, Phemus acquired a
Warrant to purchase 720,548 shares of Common Stock at an exercise price of $.15
per share ("April Warrant") in consideration for Phemus's agreement to
subordinate its or its affiliates' loan to the Issuer in the principal amount of
$432,275 to DLJ's loan to the Issuer in the principal amount of $817,000.
Further, Phemus exercised its Warrants to purchase 15,870 shares of the Issuer's
Series D Preferred Stock. Pursuant to the terms of the Warrants, Phemus used the
1,587 shares of TOC Retail, Inc. Series B Preferred Stock that it held to pay
the Warrants exercise price. In connection with the April 21, 1993 transactions,
Phemus cancelled its July Warrants to purchase 160,816 shares of Common Stock
and its promissory note dated May 3, 1991 from the Issuer in the principal
amount of $740,752 plus two years accrued interest.
Item 5. Interest in Securities of the Issuer.
Item 5(a), (b) is hereby amended in its entirety to read as follows:
(a), (b). Aeneas is the beneficial owner of no shares of stock of the
Issuer.
Harvard is the beneficial owner of 124,000 shares of Common Stock
(approximately 0.02% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Harvard has the right to acquire the
beneficial ownership of within 60 days).
HYI is the beneficial owner of 62,000 shares of Common Stock
(approximately 0.01% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which HYI has the right to acquire beneficial
ownership of within 60 days).
Phemus is the beneficial owner of 15,793,999 shares of Common Stock
and, solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to be the
beneficial owner of an additional 720,548 shares of Common Stock for a total
beneficial ownership of 16,514,547 shares of Common Stock (approximately 24.37%
of the shares of Common Stock based on the most recent filing of the Issuer with
the Securities and Exchange Commission and including shares of stocks of the
Issuer which Phemus has the right to acquire beneficial ownership of within 60
days).
On March 15, 1993, Phemus converted 129,955 shares of Series E
Preferred Stock into 1,299,550 shares of Common Stock. On April 21, 1993 Phemus
purchased 105,820 shares of Series F Preferred Stock at a purchase price of
$15.00 per share. On May 11, 1993 Phemus sold 8,905 shares of Series F Preferred
Stock in private transactions at a price of $15.00 per share and simultaneously
converted the
Page 139 of 170 Pages
<PAGE>
remaining 96,915 shares of Series F Preferred Stock into 9,691,500 shares of
Common Stock. Phemus also acquired, on April 21, 1993, 15,870 shares of Series D
Preferred Stock pursuant to its Warrants at an exercise price of $1.90 per
share. Phemus used the 1,587 shares of TOC Series B Preferred Stock it held to
pay the Warrants exercise price. Phemus then converted such Series D Preferred
Stock into 835,263 shares of Common Stock. Pursuant to the terms of the
Warrants, on April 21, 1993, the Issuer issued Phemus 42,297 shares of Common
Stock in lieu of payment in cash of accrued dividends on the TOC Series B
Preferred Stock of $80,364.30. Phemus also converted 13,228 shares of Series B
Preferred Stock (plus accrued dividends of $105,741) into 756,025 shares of
Common Stock, on April 21, 1993. Phemus also acquired a warrant ("April
Warrant") from the Issuer, pursuant to the Warrant Subscription Agreement, to
purchase 720,548 shares of Common Stock. Finally, Phemus cancelled its July
Warrant to purchase 160,816 shares of Common Stock.
The foregoing amounts and percentages do not include the 124,000 shares
of Common Stock of the Issuer beneficially owned by Harvard and 62,000 shares of
Common Stock of the Issuer beneficially owned by HYI, nor do they give effect to
the exercise of any options, warrants and conversion rights held by other
holders of the Issuer's securities.
Tenacqco and DLJ which, for purposes of this Item 5 will be referred to
jointly as "Tenacqco," unless otherwise indicated, in the aggregate own or have
the right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i), may be
deemed to beneficially own 29,715,364 shares of Common Stock, representing
approximately 44.32% of the outstanding shares of Common Stock. The foregoing
amounts and percentages do not give effect to the exercise of any options,
warrants and conversion rights held by other holders of the Issuer's securities.
IMR and Quadrant which, for purposes of this Item 5 will be referred to
jointly as "IMR," unless otherwise indicated, in the aggregate own or have the
right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i), may be
deemed to own beneficially 14,802,235 shares of Common Stock, representing
approximately 21.87% of the outstanding Common Stock (assuming full exercise of
IMR's warrant to purchase Common Stock it received pursuant to the Warrant
Subscription Agreement, such exercise being referred to as the "IMR Full
Exercise"). Of the Common Stock IMR may be deemed to own beneficially, 641,209
shares may be issued upon exercise of its warrant. The foregoing amounts and
percentages do not give effect to the exercise of any options, warrants and
conversion rights held by other holders of the Issuer's securities.
The aggregate number of shares of Common Stock beneficially owned by
Phemus, Tenacqco and IMR as a "group", for purposes of Rule 13d-5, is
61,218,146, representing approximately 89.49% of the outstanding Common Stock
(assuming the full exercise of Phemus's and IMR's warrants, all such exercises
being referred to collectively as the "Maximum Group Exercise").
Pursuant to Rule 13d-5(b)(1), to the extent a "group" is deemed to
exist by virtue of the Stockholders Agreement, as amended on April 20, 1993 to
include DLJ as a party thereto, such group would be deemed to have beneficial
ownership of all equity securities of the Issuer beneficially owned by the other
parties to the Stockholders Agreement. On that basis, such group would be deemed
to beneficially own an aggregate of 61,218,146 shares of Common Stock, assuming
Maximum Group Exercise, representing approximately 89.49% of the outstanding
Common Stock of the Issuer, and would be deemed to have the power to vote or to
direct the vote and the power to dispose or to direct the disposition of
61,218,146 shares of Common Stock assuming Maximum Group Exercise.
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock to which this statement relates held in its name, and
each has sole power to vote and dispose of all of such shares.
Page 140 of 170 Pages
<PAGE>
To the best of Phemus's, Harvard's and HYI's knowledge and belief, none
of the other officers or directors of Phemus, HYI, or the President or Fellows
of Harvard beneficially owns any shares of the Common Stock or Preferred Stock
of the Issuer.
Item 6. Contracts, Arrangements, Undertakings or Relationships
with Respect to Securities of the issuer.
Item 6 is amended by adding thereto the following:
On April 20, 1993 the Stockholders Agreement, which had been previously
filed with the Commission on August 12, 1992 as Exhibit F to this Schedule 13D,
was amended to add DLJ as a party thereto.
Item 7. Material to be Filed as Exhibits.
Item 7 is amended by adding thereto the following:
Exhibit J -- Amendment to Stockholders Agreement dated April 20, 1993
among DLJ, Tenacqco, Phemus, IMR, Quadrant and the Issuer.
Page 141 of 170 Pages
<PAGE>
Exhibit B is hereby amended to read in its entirety as follows:
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210
I. Directors of Aeneas
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard Management Company, Inc.
Michael R. Eisenson Managing Partner, Aeneas Group, Inc.
Scott M. Sperling Managing Partner, Aeneas Group, Inc.
II. Executive Officers of Aeneas (in addition to
those listed above under (I))
Office/Position
Name with Aeneas
---- -----------------
Jack R. Meyer President
Verne O. Sedlacek Vice President and Treasurer
Michael Thonis Vice President
Scott M. Sperling Vice President
Michael R. Eisenson Vice President
Tami E. Nason Assistant Secretary
Page 142 of 170 Pages
<PAGE>
III. Trustees of HYI
Present Principal
Name Occupation
---- -----------------
Professor Henry Rosovsky, Professor, Harvard University
Chairman
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the
Clarence and Anne Dillon
Dunwalke Trust
Dr. James T. Lavey President, Emory University
Dr. David W. Vikner President, United Board for
Christian Higher Education
in Asia
Dr. Nathan M. Pusey Retired President, Harvard University
Mr. Galen L. Stone Private Investor
IV. Executive Officers of HYI (in addition to
those listed under (III))
Office/Position
Name with HYI
---- -----------------
Professor Patrick Hannan Director
Edward J. Baker Assistant Director
Page 143 of 170 Pages
<PAGE>
V. President and Fellows of Harvard and
Other Executive Officers of Harvard
Office/Position
Name with Harvard
---- -----------------
Neil Rudenstine President
Robert Shenton Secretary
D. Ronald Daniel Treasurer
Charles P. Slichter Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Richard A. Smith Fellow
Henry Rosovsky Fellow
Margaret H. Marshall Vice President and
General Counsel
Sally Zeckhauser Vice President
Fred L. Glimp Vice President of
Alumni Affairs
Robert Scott Vice President of
Financial Affairs
Page 144 of 170 Pages
<PAGE>
VI. Directors of Phemus
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard Management
Company
Verne O. Sedlacek Treasurer, Harvard Management
Company
Michael R. Eisenson Managing Partner, Aeneas
Group, Inc.
VII. Executive Officers of Phemus (in addition to
those listed above under (VI))
Office/Position
Name with Phemus
---- -----------------
Jack R. Meyer President
Verne O. Sedlacek Treasurer
Michael R. Eisenson Vice President
Scott M. Sperling Vice President
Michael Thonis Vice President
Tami E. Nason Assistant Clerk
Page 145 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: May 24, 1993
AENEAS VENTURE CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Vice President/Treasurer
PHEMUS CORPORATION
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD-YENCHING INSTITUTE
By: /s/ Verne O. Sedlacek
------------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 146 of 170 Pages
<PAGE>
INDEX OF EXHIBITS
Exhibit
No. Description Page
- ------- ----------- ----
J Amendment to Stockholders Agreement 16
dated April 20, 1993 among DLJ,
Tenacqco, Phemus, IMR, Quadrant
and the Issuer.
Page 147 of 170 Pages
<PAGE>
Schedule VII
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D-A
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
E-Z Serve Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 par value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
269-329-108
- --------------------------------------------------------------------------------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Company, Inc. Ropes & Gray
600 Atlantic Avenue One International Place
Boston, MA 02210 Boston, MA 02110
(617) 523-4400 (617) 951-7410
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
November 29, 1993
------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 148 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Aeneas Venture Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Delaware |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | None |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | None |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | None |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 149 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 16,514,457 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 16,514,457 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 16,514,457 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 24.4% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 150 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.2% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 151 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.1% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 152 of 170 Pages
<PAGE>
SCHEDULE 13D
E-Z Serve Corporation
Amendment No. 6
Item 5 is hereby amended in its entirety to read as follows:
(a), (b). Aeneas is the beneficial owner of no shares of stock of the
Issuer.
Harvard is the beneficial owner of 124,000 shares of Common Stock
(approximately 0.2% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which Harvard has the right to acquire the
beneficial ownership of within 60 days).
HYI is the beneficial owner of 62,000 shares of Common Stock
(approximately 0.1% of the shares of Common Stock based upon the most recently
available filing by the Issuer with the Securities and Exchange Commission and
including shares of Common Stock which HYI has the right to acquire beneficial
ownership of within 60 days).
Phemus is the beneficial owner of 15,793,999 shares of Common Stock
and, solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to be the
beneficial owner of an additional 720,458 shares of Common Stock for a total
beneficial ownership of 16,514,457 shares of Common Stock (approximately 24.4%
of the shares of Common Stock based on the most recent filing of the Issuer with
the Securities and Exchange Commission and including shares of stocks of the
Issuer which Phemus has the right to acquire beneficial ownership of within 60
days).
The foregoing amounts and percentages do not include the 124,000 shares
of Common Stock of the Issuer beneficially owned by Harvard and 62,000 shares of
Common Stock of the Issuer beneficially owned by HYI, nor do they give effect to
the exercise of any options, warrants and conversion rights held by other
holders of the Issuer's securities.
Tenacqco and DLJ which, for purposes of this Item 5 will be referred to
jointly as "Tenacqco," unless otherwise indicated, in the aggregate own or have
the right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i), may be
deemed to beneficially own 29,715,364 shares of Common Stock, representing
approximately 44.3% of the outstanding shares of Common Stock. The foregoing
amounts and percentages do not give effect to the exercise of any options,
warrants and conversion rights held by other holders of the Issuer's securities.
IMR and Quadrant which, for purposes of this Item 5 will be referred to
jointly as "IMR," unless otherwise indicated, in the aggregate own or have the
right to acquire and, solely for the purpose of Rule 13d-3(d)(1)(i), may be
deemed to own beneficially 14,802,325 shares of Common Stock, representing
approximately 21.6% of the outstanding Common Stock (assuming full exercise of
IMR's warrant to purchase Common Stock it received pursuant to the Warrant
Subscription Agreement, such exercise being referred to as the "IMR Full
Exercise"). Of the Common Stock IMR may be deemed to own beneficially, 641,209
shares may be issued upon exercise of its warrant. The foregoing amounts and
percentages do not give effect to the exercise of any options, warrants and
conversion rights held by other holders of the Issuer's securities.
Page 153 of 170 Pages
<PAGE>
The aggregate number of shares of Common Stock beneficially owned by
Phemus, Tenacqco and IMR as a "group", for purposes of Rule 13d-5, is
61,218,146, representing approximately 89.5% of the outstanding Common Stock
(assuming the full exercise of Phemus's and IMR's warrants, all such exercises
being referred to collectively as the "Maximum Group Exercise").
Pursuant to Rule 13d-5(b)(1), to the extent a "group" is deemed to
exist by virtue of the Stockholders Agreement, as amended on April 20, 1993 to
include DLJ as a party thereto, such group would be deemed to have beneficial
ownership of all equity securities of the Issuer beneficially owned by the other
parties to the Stockholders Agreement. On that basis, such group would be deemed
to beneficially own an aggregate of 61,218,146 shares of Common Stock, assuming
Maximum Group Exercise, representing approximately 89.5% of the outstanding
Common Stock of the Issuer, and would be deemed to have the power to vote or to
direct the vote and the power to dispose or to direct the disposition of
61,218,146 shares of Common Stock assuming Maximum Group Exercise.
Each of Phemus, Harvard and HYI is the beneficial owner of all of the
shares of Common Stock to which this statement relates held in its name, and
each has sole power to vote and dispose of all of such shares.
To the best of Aeneas's, Phemus's, Harvard's and HYI's knowledge and
belief, none of the other officers or directors of Aeneas, Phemus, HYI, or the
President or Fellows of Harvard beneficially owns any shares of the Common Stock
or Preferred Stock of the Issuer.
(c) On November 29, 1993 Phemus converted its 96,915 shares of Series F
Preferred Stock into 9,691,500 shares of Common Stock and not on May 11, 1993 as
previously reported.
Other than the transactions described in the immediately preceding
paragraph, neither Aeneas, Phemus, Harvard nor HYI has engaged in any
transactions in the Common Stock or Preferred Stock of the Issuer during the
past 60 days. To the best of Aeneas's, Phemus's, Harvard's and HYI's knowledge
and belief, none of the directors or executive officers of Aeneas, Phemus, or
HYI nor any of the President or Fellows or other executive officers of Harvard
has engaged in any transactions in the Common Stock or Preferred stock of the
Issuer during the past 60 days.
(d). None.
(e). Not applicable.
Page 154 of 170 Pages
<PAGE>
Exhibit B is hereby amended to read in its entirety as follows:
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210
VIII. Directors of Aeneas
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard
Management Company, Inc.
Michael R. Eisenson President and Senior Partner,
Aeneas Group, Inc.
Scott M. Sperling Vice Chairman and Senior Partner,
Aeneas Group, Inc.
IX. Executive Officers of Aeneas (in addition to
those listed above under (I))
Office/Position
Name with Aeneas
---- -----------------
Jack R. Meyer President
Verne O. Sedlacek Treasurer
Michael Thonis Vice President
Scott M. Sperling Vice President
Michael R. Eisenson Vice President
John M. Sallay Vice President
Tim R. Palmer Vice President
Tami E. Nason Secretary
Page 155 of 170 Pages
<PAGE>
X. Trustees of HYI
Present Principal
Name Occupation
---- -----------------
Professor Henry Rosovsky, Professor, Harvard University
Chairman
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the
Clarence and Anne Dillon
Dunwalke Trust
Dr. James T. Lavey President, Emory University
Dr. David W. Vikner President, United Board for
Christian Higher Education
in Asia
Dr. Nathan M. Pusey Retired President, Harvard
University
Mr. Galen L. Stone Private Investor
XI. Executive Officers of HYI (in addition to
those listed under (III))
Office/Position
Name with HYI
---- -----------------
Professor Patrick Hannan Director
Edward J. Baker Assistant Director
Page 156 of 170 Pages
<PAGE>
XII. President and Fellows of Harvard and
Other Executive Officers of Harvard
Office/Position
Name with Harvard
---- -----------------
Neil Rudenstine President
Robert Shenton Secretary
D. Ronald Daniel Treasurer
Charles P. Slichter Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Richard A. Smith Fellow
Henry Rosovsky Fellow
Margaret H. Marshall Vice President and
General Counsel
Sally Zeckhauser Vice President for Administration
Fred L. Glimp Vice President of
Alumni Affairs
Robert Scott Vice President of
Financial Affairs
Jane Corlette Acting Vice President of
Government, Community and
Public Affairs
XIII. Directors of Phemus
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard Management
Company, Inc.
Verne O. Sedlacek Treasurer, Harvard Management
Company, Inc.
Michael R. Eisenson President and Senior Partner,
Aeneas Group, Inc.
Page 157 of 170 Pages
<PAGE>
XIV. Executive Officers of Phemus (in addition to
those listed above under (VI))
Office/Position
Name with Phemus
---- -----------------
Jack R. Meyer President
Verne O. Sedlacek Treasurer
Michael R. Eisenson Vice President
Scott M. Sperling Vice President
Michael Thonis Vice President
Tami E. Nason Clerk
Page 158 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: December 30, 1993
AENEAS VENTURE CORPORATION
/s/ Verne O. Sedlacek
By: _____________________
Name: Verne O. Sedlacek
Title: Treasurer
PHEMUS CORPORATION
/s/ Verne O. Sedlacek
By: _____________________
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
/s/ Verne O. Sedlacek
By: _____________________
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD YENCHING INSTITUTE
/s/ Verne O. Sedlacek
By: _____________________
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 159 of 170 Pages
<PAGE>
Schedule VIII
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D-A
Under the Securities Exchange Act of 1934
(Amendment No. 7)*
E-Z Serve Corporation
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, $.01 per value
- --------------------------------------------------------------------------------
(Title of Class of Securities)
269-329-108
-----------
(CUSIP Number)
Verne O. Sedlacek COPY TO: Christopher A. Klem, Esq.
Harvard Management Company, Inc. Ropes & Gray
600 Atlantic Avenue One International Place
Boston, MA 02210 Boston, MA 02110
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 13, 1995
-------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]
Check the following box if a fee is being paid with the statement [ ] (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 160 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Phemus Corporation |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 20,446,023.20 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 20,446,023.20 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 20,446,023.20 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 30.1% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | CO |
|----|-------------------------------------------------------------------------|
Page 161 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | The President and Fellows of Harvard College |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 124,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 124,000 |
| | |----------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 124,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.2% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 162 of 170 Pages
<PAGE>
- ------------------------ 13D -----------------------------
CUSIP No. 269-329-108 | | |
- ----------------------- ------------------------------
- -------------------------------------------------------------------------------|
| 1. | NAME OF REPORTING PERSONS |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS |
| | |
| | Harvard Yenching Institute |
|----|-------------------------------------------------------------------------|
| | (a) [X] |
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* |
| | (b) [ ] |
|----|-------------------------------------------------------------------------|
| | |
| 3. | SEC USE ONLY |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 4. | SOURCE OF FUNDS* |
| | WC |
|----|-------------------------------------------------------------------------|
| | |
| 5. | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED [ ] |
| | PURSUANT TO ITEM 2(d) or 2(e) |
|----|-------------------------------------------------------------------------|
| | |
| 6. | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | Massachusetts |
|----|-------------------------------------------------------------------------|
| | | |
| | 7. | SOLE VOTING POWER |
| NUMBER OF | | |
| SHARES | | 62,000 |
| BENEFICIALLY |----------------------------------------------------------|
| OWNED BY | | |
| EACH | 8. | SHARED VOTING POWER |
| REPORTING | | |
| PERSON | | -- |
| WITH |----------------------------------------------------------|
| | | SOLE DISPOSITIVE POWER |
| | 9. | |
| | | 62,000 |
| |----------------------------------------------------------|
| | | |
| | 10. | SHARED DISPOSITIVE POWER |
| | | |
| | | -- |
|----|-------------------------------------------------------------------------|
| | |
| 11.| AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 62,000 |
|----|-------------------------------------------------------------------------|
| | |
| 12.| CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ] |
| | CERTAIN SHARES* |
| | |
|----|-------------------------------------------------------------------------|
| | |
| 13.| PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 0.1% |
|----|-------------------------------------------------------------------------|
| | |
| 14.| TYPE OF REPORTING PERSON* |
| | |
| | EP |
|----|-------------------------------------------------------------------------|
Page 163 of 170 Pages
<PAGE>
SCHEDULE 13D
E-Z Serve Corporation
Amendment No. 7
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 is hereby amended by adding thereto the following:
Pursuant to a Stock Purchase Agreement dated as of February 27, 1995
between Phemus and Harken Energy Corporation, Phemus purchased 74,702 shares of
Series C Preferred Stock of the Issuer for an aggregate purchase price of
$2,744,728. The Series C Preferred Stock is convertible into Common Stock of the
Issuer at a rate of 52.63 shares of Common Stock for each share of Series C
Preferred Stock.
Item 4. Purpose of the Transaction.
Item 4 is amended in its entirety to read as follows:
On June 13, 1995, the Issuer, Phemus and Intercontinental Mining &
Resources Incorporated ("IMR") entered into a Subscription Agreement (the
"Subscription Agreement"). Subject to certain conditions set forth in the
Subscription Agreement, Phemus has agreed to purchase 90,000 shares of the
Issuer's Series G Convertible Redeemable Preferred Stock (the "Series G
Preferred Stock") for an aggregate purchase price of $9,000,000. One year after
the filing of the certificate of designations and the issuance of the Series G
Preferred Stock, such preferred stock would be convertible, at the option of the
holder, into Common Stock at a rate of 100 shares of Common Stock for each share
of Series G Preferred Stock. The Subscription Agreement was entered into in
connection with a tender offer made by EZS Acquisition Corporation, a wholly
owned subsidiary of the Issuer, to acquire all of the capital stock of
Sunshine-Jr. Stores, Inc. This summary of the Subscription Agreement is
qualified in its entirety by reference to the Subscription Agreement which is
attached hereto as Exhibit M.
In connection with the execution of the Subscription Agreement, Phemus,
Quadrant Capital Corp., IMR, Tenacqco Bridge Partnership ("Tenacqco") and DLJ
Capital Corp. ("DLJ") entered into a Consent (the "Consent") with respect to the
Amended and Restated Stockholders Agreement dated June 1, 1994. The Consent
authorizes, among other things, the filing of the certificate of designations
with respect to the Series G Preferred Stock and an increase in the number of
members of the Board of Directors of the Issuer to allow for two directors to be
nominated by the holders of the Series G Preferred Stock. This summary of the
Consent is qualified in its entirety by reference to the Consent which is
attached hereto as Exhibit N.
Each of Phemus, Harvard and HYI has purchased the shares of Common
Stock and Preferred Stock it beneficially owns as of the date of this statement
for investment purposes. Each of Phemus, Harvard and HYI disclaims any intention
to influence control of management.
As part of its overall portfolio management as an institutional
investor, each of Phemus, Harvard and HYI may from time to time otherwise
acquire additional shares of the Issuer and may dispose of shares in the open
market, in private transactions, pursuant to underwritings under registration
rights granted by the Issuer and otherwise, depending upon various factors
including the price level of the Common Stock, conditions in the securities
markets, general economic and industry conditions, and the availability of other
investment opportunities.
Page 164 of 170 Pages
<PAGE>
Other than as described above in this Item 4, neither Phemus, Harvard
nor HYI has any plans or proposals which relate to or would result in any of the
actions set forth in parts (b) through (j) of Item 4.
Item 5. Interest in Securities of the Issuer.
The fourth paragraph of Item 5 (a), (b) is amended in its entirety to
read as follows:
(a), (b). Phemus is the beneficial owner of 15,793,999 shares of Common
Stock and, solely for the purpose of Rule 13d-3(d)(1)(i), may be deemed to be
the beneficial owner of an additional 4,652,024.20 shares of Common Stock for a
total beneficial ownership of 20,446,023.20 shares of Common Stock
(approximately 30.1% of the shares of Common Stock based on the most recent
filing of the Issuer with the Securities and Exchange Commission and including
shares of stocks of the Issuer which Phemus has the right to acquire beneficial
ownership of within 60 days).
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to
Securities of Issuer
Item 6 is hereby amended by adding thereto the following:
Pursuant to the Amended and Restated Stockholders Agreement dated as of
June 1, 1994 among DLJ, Tenacqco, Phemus, IMR, Quadrant Capital Corp.
(collectively, the "Holders"), certain employees of the Issuer and the Issuer,
which is attached as Exhibit L hereto, the Holders have certain agreements
relating to the voting, holding and disposition of shares of Common Stock and
other convertible securities of the Issuer. In addition, Phemus has entered into
the Subscription Agreement and the Consent, each of which is more fully
described in Item 4 above.
Item 7. Materials to be Filed as Exhibits.
Item 7 is hereby amended in its entirety to read as follows:
*Exhibit A: Information concerning Reporting Persons.
Exhibit B: Information concerning Reporting Persons' officers,
directors and others.
*Exhibit C: Registration Statement (Registration No. 33-37141) on
Form S-1 under the Securities Act of 1933 dated March 22, 1991 (the
"Registration Statement") filed by the Issuer and Tejas Power
Corporation with the Securities and Exchange Commission (incorporated
by reference to such filing).
*Exhibit D: Standby Purchase Agreement dated September 18, 1990 and
subsequently amended, among, inter alia, the Issuer and Phemus
(incorporated by reference to Exhibit 10.2 to the Registration
Statement).
*Exhibit E: Credit Agreement dated May 25, 1990 and subsequently
amended, among, inter alia, the Issuer and Phemus (incorporated by
reference to Exhibit 10.1 to the Registration Statement).
*Exhibit F: Stockholders Agreement dated July 31, 1992 among, inter
alia, the Issuer and Phemus.
Page 165 of 170 Pages
<PAGE>
*Exhibit G: Warrant Purchase Agreement dated July 15, 1992 among,
inter alia, the Issuer and Phemus, and form of Warrant.
*Exhibit H: Restructuring Agreement dated July 189, 1992 and
subsequently amended, among, inter alia, the Issuer and Phemus, and
form of Warrant.
*Exhibit I: Option Agreement dated July 18, 1992 and subsequently
amended, among Phemus, DLJ Bridge Finance, L.P. and IMR.
*Exhibit J: New Proxy dated July 31, 1992 executed by Phemus in favor
of Tenacqco Bridge Partnership replacing Proxy dated July 18, 1992
executed by Phemus in favor of DLJ Bridge Finance, L.P.
**Exhibit K: Amendment to Stockholders Agreement dated April 20, 1993
among DLJ, Tenacqco, Phemus, IMR, Quadrant and the Issuer.
Exhibit L: Amended and Restated Stockholders Agreement dated as of
June 1, 1994 among DLJ Capital Corp., Tenacqco Bridge Partnership,
Phemus, IMR, Quadrant Capital Corp., the Issuer and certain key
employees of the Issuer.
Exhibit M: Subscription Agreement dated June 13, 1995 by and among
the Issuer, Phemus and IMR.
Exhibit N: Consent of Holders dated June 13, 1995 executed by Phemus,
Quadrant Capital Corp., IMR, Tenacqco Bridge Partnership and DLJ
Capital Corp.
- --------
**Previously filed as exhibits to this Schedule 13D.
Page 166 of 170 Pages
<PAGE>
Exhibit B is hereby amended to read in its entirety as follows:
EXHIBIT B
Directors and Executive Officers
The names of the directors and executive officers and their business
addresses and present principal occupation or employment are set forth below. If
no business address is given, the director's or officer's business address is
c/o Harvard Management Company, Inc., 600 Atlantic Avenue, Boston, Massachusetts
02210
I. Trustees of HYI
Present Principal
Name Occupation
---- -----------------
Professor Henry Rosovsky, Chairman Professor, Harvard University
Linda Chisolm Associate of Episcopal Colleges
T. Jefferson Coolidge, Jr. Private Investor
Professor Daniel Ingalls Retired Professor, Harvard University
Ms. Phyllis D. Collins Trustee, Dillon Fund and the Clarence and
Anne Dillon Dunwalke Trust
Jeremy Knowles Dean of Arts and Sciences,
Harvard University
Dr. David W. Vikner President, United Board for Christian
Higher Education in Asia
Dr. Nathan M. Pusey Retired President, Harvard University
Mr. Galen L. Stone Private Investor
II. Executive Officers of HYI (in addition to
those listed under (I.))
Office/Position
Name with HYI
---- ---------------
Professor Patrick Hannan Director
Edward J. Baker Assistant Director
Page 167 of 170 Pages
<PAGE>
III. President and Fellows of Harvard and
Other Executive Officers of Harvard
Office/Position
Name with Harvard
---- ---------------
Neil Rudenstine President
Michael Roberts Secretary
D. Ronald Daniel Treasurer
Albert Carnesale Fellow
Charles P. Slichter Fellow
Robert G. Stone, Jr. Fellow
Judith Richards Hope Fellow
Richard A. Smith Fellow
Henry Rosovsky Fellow
Margaret H. Marshall Vice President and General Counsel
Sally Zeckhauser Vice President for Administration
Fred L. Glimp Vice President of Alumni Affairs and
Development
Allen J. Proctor Vice President for Finance
James H. Rowe Vice President of Government,
Community and Public Affairs
IV. Directors of Phemus
Present Principal
Name Occupation
---- -----------------
Jack R. Meyer President, Harvard Management Company, Inc.
Verne O. Sedlacek Chief Financial Officer, Harvard Management
Company, Inc.
Michael R. Eisenson President and Chief Executive Officer,
Harvard Private Capital Group, Inc.
Page 168 of 170 Pages
<PAGE>
MAXXV. Executive Officers of Phemus
Office/Position
Name with Harvard
---- ---------------
Michael R. Eisenson President
Verne O. Sedlacek Treasurer
Jack R. Meyer Vice President
John M. Sallay Vice President
Michael Thonis Vice President
Tami E. Nason Clerk
Kathryn S. Rowe Assistant Clerk
Page 169 of 170 Pages
<PAGE>
Signature
After reasonable inquiry and to the best of their knowledge and belief,
the undersigned certify that the information set forth in this statement is
true, complete and correct.
Dated: June __, 1995
PHEMUS CORPORATION
/s/ Verne O. Sedlacek
By: ---------------------------
Name: Verne O. Sedlacek
Title: Treasurer
PRESIDENT AND FELLOWS OF HARVARD COLLEGE
/s/ Verne O. Sedlacek
By: ---------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
HARVARD YENCHING INSTITUTE
/s/ Verne O. Sedlacek
By: ---------------------------
Name: Verne O. Sedlacek
Title: Authorized Signatory
Page 170 of 170 Pages
